United States v. David Williams

USCA11 Case: 21-13790 Document: 42-1 Date Filed: 02/07/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13790
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID WILLIAMS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:01-cr-00058-MSS-GJK-1
____________________
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2 Opinion of the Court 21-13790
Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit
Judges.
PER CURIAM:
David Williams appeals the district court’s partial grant and
partial denial of his motion to reduce sentence under the First Step
Act 1 and denial of his motion for reconsideration. The govern-
ment moved to dismiss the appeal as untimely, arguing that Wil-
liams’s motion for reconsideration did not toll the time to appeal
as the grant of an 18 U.S.C. § 3582(c) motion can only be challenged
through a Rule 35(a) motion, which does not toll the time to ap-
peal, for which it cited United States v. Phillips, 597 F.3d 1190 (11th
Cir. 2000). We carried with the case the issue of whether the
timely motion for reconsideration tolled the time to appeal and de-
cide it first because it affects our jurisdiction.
In a criminal case, a defendant’s notice of appeal must be
filed in the district court within 14 days after entry of the judgment
or order being appealed. Fed. R. App. P. 4(b)(1)(A)(i). The deadline
under Rule 4(b) for a defendant to file a notice of appeal in a crim-
inal case is not jurisdictional. See United States v. Lopez, 562 F.3d
1309, 1313 (11th Cir. 2009). Instead, the filing deadline is consid-
ered a claims processing rule, and the government can waive an
objection to an untimely notice of appeal in a criminal case. Id. at
1 First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194.
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21-13790 Opinion of the Court 3
1312 13. Nevertheless, if the government raises the issue of timeli-
ness, then we “must apply the time limits of Rule 4(b).” Id. at 1313
14.
Motions for reconsideration allow courts to “reconsider [a]
question decided in the case in order to effect an alteration of the
rights adjudicated.” United States v. Dieter, 429 U.S. 6, 8 9 (1976)
(quotation marks omitted). Although a motion for reconsideration
in a criminal action is not expressly authorized by the Federal Rules
of Criminal Procedure, the filing of such a motion tolls the time for
filing a notice of appeal and the time begins to run anew following
disposition of the motion. United States v. Vicaria, 963 F.2d 1412,
1413-14 (11th Cir. 1992). A motion for reconsideration in a criminal
case must be filed within the period of time allotted for filing a no-
tice of appeal in order to extend the time for filing the notice of
appeal. Id. at 1414. Thus, a criminal defendant must file a motion
for reconsideration within 14 days of the order or judgment. Id.However, a motion filed under Rule 35(a) does not toll the time to
appeal. Fed. R. App. P. 4(b)(5).
District courts lack inherent authority to modify a term of
imprisonment but may do so to the extent that a statute or Rule 35
expressly permits. 18 U.S.C. § 3582(c)(1)(B). A party files a Fed. R.
Crim. P. 35(a) motion when they seek to “correct a sentence that
resulted from arithmetical, technical, or other clear error.” Fed. R.
Crim. P. 35(a). In Phillips, the government filed a motion for re-
consideration of the district court’s order granting a sentence re-
duction, asking to correct the sentence that the court imposed
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4 Opinion of the Court 21-13790
based on an error during the calculation of the Guidelines range for
the sentence reduction. 597 F.3d at 1193. We held that a district
court only has the authority to modify a sentence through the nar-
row authority granted under 18 U.S.C. § 3582(c), which does not
provide for a motion for reconsideration. Phillips, 597 F.3d at 1194
97. We further held that, when the district court grants a motion
and modifies the original sentence, the strictures of § 3582(c) apply.
Id. at 1197-99. When the government argued that the Supreme
Court and this Court have permitted motions for reconsideration
in criminal cases, we distinguished those cases because: (1) those
decisions “did not involve a motion to correct an imprisonment
sentence and therefore they did not need to address the unambig-
uous language in § 3582(c)(1)(B) which prohibits a district court
from modifying an imprisonment sentence except as ‘expressly
permitted by statute or by Rule 35’”; and (2) § 3582(c)(1)(B) does
not provide for a motion for reconsideration as an exception to the
sentence modification prohibition. Id. at 1200 (emphasis in origi-
nal). In Llewlyn, we determined that the denial of a motion to re-
duce sentence did not necessarily implicate Rule 35(a). United
States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018). As in
Llewlyn, Williams did not ask the district court to “correct a sen-
tence that resulted from arithmetical, technical, or other clear er-
ror.” Fed. R. Crim. P. 35(a).
The First Step Act permits district courts to reduce a previ-
ously imposed sentence “as if sections 2 and 3 of the Fair Sentenc-
ing Act . . . were in effect at the time the covered offense was
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21-13790 Opinion of the Court 5
committed.” First Step Act § 404(b). Listed under “limitations,” a
court cannot entertain a successive motion under the First Step Act
if the defendant’s sentence was either imposed or previously re-
duced in accordance with the Fair Sentencing Act or if a prior mo-
tion under the First Step Act had previously been denied “after a
complete review of the motion on the merits.” Id. In United States
v. Edwards, we determined that § 404 of the First Step Act was its
“own procedural vehicle” differing from § 3582(c), holding that §
404 was self-contained and self-executing. 997 F.3d 1115, 1119
(11th Cir. 2021), cert. denied, 142 S. Ct. 509 (2021). We noted that
the language in the two statutes differed because the First Step Act
authorized a reduction in “sentence” while § 3582(c) authorized a
modification of a “term of imprisonment. Id. at 1118. We ex-
plained that the plain terms in § 404 of the First Step Act broadly
authorize district courts to reduce sentences under certain circum-
stances while § 3582(c) grants narrow authority to modify terms of
imprisonment. Id. at 1118 19.
Here, Phillips is inapplicable because the statutory bar under
18 U.S.C. § 3582(c) was not triggered, as the district court reduced
Williams’s sentence pursuant to its authority under § 404 of the
First Step Act rather than § 3582(c). Moreover, nothing in the First
Step Act confines its broad authority to the strictures of Rule 35(a).
Therefore, Williams’s timely motion for reconsideration tolled the
time to appeal. As such, the government’s motion to dismiss is
DENIED.
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6 Opinion of the Court 21-13790
We now turn to Williams’s substantive argument. He ar-
gues that the district court erred in relying on United States v. Den-
son2 to support its determination that it lacked authority to reduce
his sentence. The government moved for summary affirmance,
arguing that he forfeited his challenge to the district court’s partial
denial of his underlying motion by failing to challenge on appeal
the court’s alternative determination that, even if it had authority
to reduce his term of imprisonment, it would decline to do so as a
matter of discretion. It asserts that he also forfeited any challenge
to the denial of his motion for reconsideration by failing to chal-
lenge that order on appeal.
We review de novo whether a district court had the author-
ity to modify a term of imprisonment. United States v. Taylor, 982
F.3d 1295, 1298 (11th Cir. 2020). We review the denial of an eligible
defendant’s request for a reduced sentence under the First Step Act
for abuse of the district court’s “broad discretion.” See Concepcion
v. United States, 142 S. Ct. 2389, 2404 (2022).
District courts lack inherent authority to modify a term of
imprisonment but may do so to the extent that a statute expressly
permits. 18 U.S.C. § 3582(c)(1)(B). The Fair Sentencing Act, 3 en-
acted in 2010, amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce
the disparity between sentences for crack and powder cocaine
2 United States v. Denson, 963 F.3d 1080 (11th Cir. 2020), abrogated on other
grounds by Concepcion v. United States, 142 S. Ct. 2389 (2022).
3 Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372.
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21-13790 Opinion of the Court 7
offenses. Dorsey v. United States, 567 U.S. 260, 268-69 (2012). The
subsequent First Step Act retroactively applies the statutory penal-
ties for “covered offenses” under the Fair Sentencing Act. See First
Step Act § 404(a). “Section 404(c) of the First Step Act confers par-
ticular discretion, clarifying that the Act does not require a court to
reduce any sentence.” Concepcion, 142 S. Ct. at 2404 (quotation
marks omitted).
Where a defendant does not offer any argument regarding
an issue on appeal, he is deemed to have forfeited that issue. United
States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc)
(holding that issues not raised in an initial brief are deemed for-
feited and will not be addressed absent extraordinary circum-
stances), cert. denied, 143 S. Ct. 95 (2022). A lower court’s “judg-
ment is due to be affirmed” when an appellant fails to challenge
one of the grounds on which the lower court made its decision.
United States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014) (quota-
tion marks omitted).
Here, Williams forfeited his challenge to the district court’s
denial of his § 404 motion because he failed to challenge the court’s
discretionary decision not to reduce his sentence on which the
court partially based its denial. Because Williams failed to chal-
lenge one of the grounds on which the lower court made its deci-
sion, the court’s judgment is due to be affirmed. Further, Williams
also forfeited any challenge to the district court’s denial of his mo-
tion for reconsideration because he failed to challenge that order
on appeal.
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8 Opinion of the Court 21-13790
AFFIRMED. 4
4 The government’s motion to stay the briefing schedule is denied as moot.