06-5381-cr

United States v. Frias

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Submitted: January 22, 2008 Decided: March 31, 2008) 5 Docket No. 06-5381-cr 6

------------------------------------- 7 United States of America, 8 Appellee, 9 - v - 10 Octavio Frias, 11 Defendant-Appellant. 12

------------------------------------- 13 Before:CARDAMONE, SACK, and KATZMANN, Circuit Judges. 14 Appeal by the defendant pro se from an amended judgment 15 of conviction in the United States District Court for the 16 Southern District of New York (John F. Keenan, Judge) for 17 conspiracy to commit murder in violation of 21 U.S.C. 18 § 848(e)(1)(A) in connection with a narcotics offense punishable 19under 21 U.S.C. § 841(b)(1)(A), reimposing a sentence of life 20 imprisonment after Booker remand. On appeal, the defendant 21 asserts insufficiency of the indictment, erroneous jury 22 instructions, and various sentencing errors. The government 23 raises no objection to the untimeliness of the defendant's notice 24 of appeal. 25 Affirmed.2 1 Octavio Frias, Lewisburg, PA, pro se. 2 Michael J. Garcia, United States 3 Attorney for the Southern District of 4 New York, Joshua A. Goldberg, Celeste L. 5 Koeleveld, Assistant United States 6 Attorneys, New York, NY, for Appellee. 7 SACK, Circuit Judge: 8 Defendant Octavio Frias appeals pro se from an amended 9 judgment of conviction in the United States District Court for 10 the Southern District of New York (John F. Keenan, Judge) for 11 conspiracy to commit murder in violation of 21 U.S.C. 12 § 848(e)(1)(A) in connection with a narcotics offense punishable 13 under 21 U.S.C. § 841(b)(1)(A), which reimposes a sentence of 14 life imprisonment after Booker remand. The government raises no 15 objection to the untimeliness of the defendant's notice of 16 appeal. 17 We are called upon to decide whether Federal Rule of 18Appellate Procedure 4(b), which governs the time to appeal from a 19 criminal judgment, requires us to dismiss sua sponte an untimely 20 appeal. We conclude that the time limits of Rule 4(b) are not 21 jurisdictional and are therefore capable of forfeiture by the 22 government. Frias's appeal nonetheless lacks merit. We 23 therefore affirm his conviction and sentence. 24 I. 25 On January 2, 2003, the defendant, Octavio Frias, was 26 charged by superseding indictment with one count of committing 27murder while engaged in a conspiracy to distribute and possess 28with intent to distribute more than one kilogram of heroin andJudge Allen G. Schwartz, who presided at trial, passed 1 away shortly thereafter. The case was then reassigned to Judge Keenan for sentencing. 3 1more than five kilograms of cocaine. Viewed in the light most 2 favorable to the government, the evidence at trial established 3 that Frias assisted in a large-scale narcotics and gambling 4 operation run by Roberto Martinez-Martinez, a/k/a "Papito," and 5Mario Lobo, a/k/a "Alberto Cruz." When Lobo's gambling losses 6 threatened the narcotics business, Martinez-Martinez decided to 7 have Lobo killed. Frias made all the arrangements: he hired 8 gunmen, pointed out Lobo for them on the night of the murder, and 9paid their travel expenses when the job was successfully 10 completed. On March 12, 2003, the jury returned a verdict of 11 guilty. On July 1, 2004, the court sentenced Frias principally 12 to a term of life imprisonment.1 13 Frias appealed. We summarily affirmed his conviction 14 but remanded for resentencing in light of United States v. 15 Booker, 543 U.S. 220 (2005). United States v. Frias, No. 04- 16 4106-cr, slip op. at 3 (2d Cir. Sept. 28, 2005) ("Frias I"). On 17 January 4, 2006, the district court, having conducted sentencing 18proceedings anew pursuant to our remand, entered an amended 19 judgment again imposing a life sentence. 20 On September 28, 2006, proceeding pro se, Frias filed a 21 notice of appeal. In his brief on appeal, Frias asserts 22 insufficiency of the indictment, erroneous jury instructions, and 23various sentencing errors. Frias also concedes that his appealRule 4(b) states, in relevant part: 2 (1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of:(I) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal.

... (4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may –- before or after the time has expired, with or without motion and 4 1 is untimely, stating that his attorney refused to file an appeal 2 on his behalf after resentencing. The government's brief 3 responds to each of Frias's claims but makes no mention of the 4 appeal's untimeliness. 5 II. 6 We consider sua sponte our subject-matter jurisdiction 7 over this appeal, "as we are obliged to do [irrespective of 8whether either party raises the issue] when it is questionable." 9 Henrietta D. v. Giuliani, 246 F.3d 176, 179 (2d Cir. 2001). 10 Here, Frias concedes that his notice of appeal was untimely but 11 the government has not asked us to dismiss his appeal for that 12 reason. 13 We have stated that the time limits prescribed by 14 Federal Rule of Appellate Procedure 4(b), which governs the time 15 to appeal from a criminal judgment, are jurisdictional, barring 16us from adjudicating the merits of an untimely appeal.See 2notice –- extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b). "[W]e are bound by the decisions of prior panels until 3 such time as they are overruled either by an en banc panel of our Court or by the Supreme Court." United States v. Brutus, 505 F.3d 80, 87 n.5 (2d Cir. 2007) (internal quotation marks and citation omitted). Although we conclude that the prior rulings of this Court on this issue have been effectively overruled by the Supreme Court in the cited cases, we have nonetheless taken the precaution of circulating this opinion to all active members of this court before filing. See id. 5 1 United States v. Fuller, 332 F.3d 60, 64 (2d Cir. 2003) (although 2 it was undisputed, treating failure to comply with time limits in 3 Rule 4(b) as jurisdictional); United States v. Ferraro, 992 F.2d 4 10, 11 (2d Cir. 1993) (per curiam) ("[T]he requirement of a 5 timely notice of appeal in rule 4(b) is jurisdictional."). More 6 recently, however, we have noted that a series of Supreme Court 7 decisions has "called into question" our previous statements 8 regarding the jurisdictional nature of Rule 4(b). United States 9v. Moreno-Rivera, 472 F.3d 49, 50 n.2 (2d Cir. 2006) (per 10 curiam). As explained below, we now conclude that Rule 4(b) is 11 not jurisdictional and that we may therefore consider Frias's 12 appeal on its merits.3 13 In Kontrick v. Ryan, 540 U.S. 443 (2004), the Supreme 14 Court held that Rule 4004 of the Federal Rules of Bankruptcy 15 Procedure, which sets a 60-day time limit on the right of a 16 creditor to file a complaint objecting to a debtor's discharge, 17 is not jurisdictional. Id. at 447. Because "[o]nly Congress may 18 determine a lower federal court's subject-matter jurisdiction,"6 1 id. at 452, the Court reasoned that time limits and filing 2 deadlines originating only in the Bankruptcy Rules, and not in 3 the United States Code, "are claim-processing rules that do not 4 delineate what cases bankruptcy courts are competent to 5 adjudicate," id. at 454. The Court acknowledged that it had 6 sometimes misused the term "jurisdictional" to describe claim7 processing rules that are mandatory or inflexible. Id. at 454- 8 55. The distinction is important, however, because 9 [c]haracteristically, a court's subject10 matter jurisdiction cannot be expanded to 11 account for the parties' litigation conduct; 12 a claim-processing rule, on the other hand, 13 even if unalterable on a party's application, 14 can nonetheless be forfeited if the party 15 asserting the rule waits too long to raise 16 the point. 17 Id. at 456. 18 The Supreme Court revisited questions of subject-matter 19 jurisdiction in Eberhart v. United States, 546 U.S. 12 (2005) 20 (per curiam), and Bowles v. Russell, 127 S. Ct. 2360 (2007). In 21 Eberhart, the Court held that Federal Rule of Criminal Procedure 22 33(a), which sets a seven-day deadline for filing a motion for 23 new trial, was virtually indistinguishable from Bankruptcy Rule 24 4004 and was therefore not jurisdictional. Eberhart, 546 U.S. at 25 15-16, 19. In Bowles, by contrast, the Court held that Federal 26Rule of Appellate Procedure 4(a), which governs the time to 27 appeal in a civil case, is jurisdictional. Bowles, 127 S. Ct. at 28 2366. 29 Bowles highlighted "the jurisdictional distinction 30between court-promulgated rules and limits enacted by Congress."Section 2107(a) provides, "Except as otherwise provided 4 in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree." 28 U.S.C. § 2107(a).

7 1 Id. at 2365. Unlike Bankruptcy Rule 4004 and Criminal Rule 2 33(a), the Court explained, the time limit in Appellate Rule 4(a) 3 is derived from a federal statute, 28 U.S.C. § 2107(a), which 4 requires parties to file notices of appeal within 30 days of the 5 entry of the judgment.Id. at 2363-65. Because the 30-day 4 6 limit was statutory, the Court reasoned, it was properly 7 construed as jurisdictional. Id. at 2365. 8 The Bowles Court addressed the jurisdictional status of 9Rule 4(a), which provides the time limit for appealing from a 10 civil judgment. It was not called upon to discuss Rule 4(b), the 11 time for appealing in a criminal case. Several of our sister 12 circuits, applying the principles announced in Kontrick, have 13 concluded that Rule 4(b), unlike Rule 4(a), is not 14 jurisdictional. See United States v. Garduño, 506 F.3d 1287, 15 1288 (10th Cir. 2007); United States v. Martinez, 496 F.3d 387, 16 388 (5th Cir.) (per curiam), cert. denied, 128 S. Ct. 728 (2007); 17 United States v. Sadler, 480 F.3d 932, 934 (9th Cir. 2007). We 18 share their view. 19 As noted, critical to the Supreme Court's decisions in 20 Kontrick and Bowles were the facts that Appellate Rule 4(a)'s 21 origin is statutory whereas Bankruptcy Rule 4004's is not. See 22 Bowles, 127 S. Ct. at 2364-65; Kontrick, 540 U.S. at 452-54; see8 1 also Grullon v. Mukasey, 509 F.3d 107, 112 (2d Cir. 2007) 2 ("Bowles emphasized repeatedly that its reasoning was based on 3 the statutory origin of the limitation . . . ."). "'It is 4 axiomatic'" that court-prescribed rules of practice and 5procedure, as opposed to statutory time limits, "'do not create 6 or withdraw federal jurisdiction.'" Kontrick, 540 U.S. at 452 7 (brackets omitted) (quoting Owen Equip. & Erection Co. v. Kroger, 8 437 U.S. 365, 370 (1978)). Appellate Rule 4(b), like Bankruptcy 9Rule 4004, is not based on a statutory prescription. As the 10 historical and statutory notes to 28 U.S.C. § 2107 indicate, the 11 time to file a notice of appeal in both civil and criminal cases 12 was governed by a single statute until 1948, when Congress 13 amended it to cover only civil actions. See Act of June 25, 14 1948, ch. 646, § 2107, 62 Stat. 869, 963 (codified as amended at 15 28 U.S.C. § 2107). For criminal cases, the time limit was then 16 set forth in Federal Rule of Criminal Procedure 37(a), and is now 17 covered by Federal Rule of Appellate Procedure 4(b). See 18 18 U.S.C. § 3732. The time to appeal a criminal judgment, 19 therefore, is set forth only in a court-prescribed rule of 20 appellate procedure. Rule 4(b), unlike Rule 4(a), is not 21 grounded in any federal statute. Accord Garduño, 506 F.3d at 22 1290; Martinez, 496 F.3d at 388; Sadler, 480 F.3d at 938. It 23 therefore does not withdraw federal jurisdiction over criminal 24 appeals. 25 United States v. Robinson, 361 U.S. 220 (1960), does 26 not require us to conclude otherwise. Although Robinson, aWe need not decide whether a court may, in its discretion, 5 dismiss sua sponte an untimely appeal even when the government fails to invoke Rule 4(b). 9 1 criminal case, states that "the taking of an appeal within the 2 prescribed time is mandatory and jurisdictional," id. at 229, the 3 Supreme Court subsequently cited Robinson "as an example of when 4 [it had] been 'less than meticulous' in [its] use of the word 5 'jurisdictional.'" Eberhart, 546 U.S. at 18 (quoting Kontrick, 6 540 U.S. at 454). And in Robinson, unlike in this case, the 7 government moved to dismiss the defendants' appeals as untimely. 8 Robinson, 361 U.S. at 221. As the Court explained in Eberhart: 9 Robinson is correct not because the District 10 Court lacked subject-matter jurisdiction, but 11 because district courts must observe the 12 clear limits of the Rules . . . when they are 13 properly invoked. This does not mean that 14 [time] limits . . . are not forfeitable when 15 they are not properly invoked. 16 546 U.S. at 17 (italics in original). 17 Our determination that Rule 4(b) is not jurisdictional, 18 then, does not authorize courts to disregard it when it is 19 raised. When the government properly objects to the untimeliness 20 of a defendant's criminal appeal, Rule 4(b) is mandatory and 21 inflexible. See Eberhart, 546 U.S. at 17-18; Moreno-Rivera, 472 22 F.3d at 50 n.2; see also United States v. Singletary, 471 F.3d 23 193, 196 (D.C. Cir. 2006).But Rule 4(b), even when properly 5 24 invoked, does not deprive us of subject-matter jurisdiction over 25 the appeal. See Kontrick, 540 U.S. at 455 ("Clarity would be 26 facilitated if courts and litigants used the label 27 'jurisdictional' not for claim-processing rules, but only for10 1prescriptions delineating the classes of cases (subject-matter 2 jurisdiction) and the persons (personal jurisdiction) falling 3within a court's adjudicatory authority."). And where, as here, 4 the government forfeits an objection to the untimeliness of a 5 defendant's appeal by failing to raise it, we act within our 6 jurisdiction when we decide to consider the appeal as though it 7 were timely filed. 8 III. 9 Having considered at the outset, as we are required to 10 do, whether we have jurisdiction, we proceed to consideration of 11 the appeal on its merits. We conclude that Frias is not entitled 12 to relief. 13 First, we reject Frias's challenges to the jury 14 instructions used at his trial, the district court's Sentencing 15 Guidelines calculations, and the findings of fact underlying 16 those calculations. This is Frias's second appeal. With the 17 exception of the issue of sentencing post-Booker, we resolved the 18merits of his appeal in Frias I. See Frias I, slip op. at 2-3. 19 The scope of this second appeal is limited by the "law of the 20 case" doctrine. 21 The law of the case ordinarily forecloses 22 relitigation of issues expressly or impliedly 23 decided by the appellate court. And where an 24 issue was ripe for review at the time of an 25 initial appeal but was nonetheless foregone, 26 it is considered waived and the law of the 27 case doctrine bars the district court on 28 remand and an appellate court in a subsequent 29 appeal from reopening such issues unless the 30 mandate can reasonably be understood as 31 permitting it to do so. . . . For similar 32 reasons, . . . the law of the case ordinarilyThe law of the case doctrine admits of certain exceptions 6 –- for example, when the appellant did not previously have an incentive or opportunity to raise the issue; when the issue arises from events that occurred after the original appeal; or in light of other "cogent and compelling reasons such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Quintieri, 306 F.3d at 1230 (internal quotation marks and citation omitted). Those exceptions do not apply here. 11 1 prohibits a party, upon resentencing or an 2 appeal from that resentencing, from raising 3 issues that he or she waived by not 4 litigating them at the time of the initial 5 sentencing. 6United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002) 7 (internal quotation marks, citations, and footnote omitted), 8 cert. denied sub nom. Donato v. United States, 539 U.S. 902 9 (2003). 10 Because we affirmed Frias's conviction in Frias I, 11 Frias cannot now claim error in the jury instructions. Our 12 remand was limited to resentencing in light of United States v. 13 Booker, 543 U.S. 220 (2005), which declared the Sentencing 14 Guidelines advisory. Therefore, we will not consider Frias's 15 challenge to the district court's Sentencing Guidelines 16 calculations or to the findings of fact underlying those 17 calculations. See United States v. Williams, 475 F.3d 468, 475- 18 76 (2d Cir. 2007), cert. denied, 128 S. Ct. 881 (2008); 19 Quintieri, 306 F.3d at 1229.6 20 We will, however, examine Frias's challenge to the 21 sufficiency of the indictment insofar as he asserts that it 22 "fails to invoke the court's jurisdiction or to state an12 1 offense." The Federal Rules of Criminal Procedure provide that 2 such a challenge may be heard "at any time while the case is 3pending." Fed. R. Crim. P. 12(b)(3)(B). "At the same time, 4 however, when a challenge is urged for the first time on appeal, 5 indictments and informations are construed more liberally and 6 every intendment is then indulged in support of the sufficiency." 7 United States v. Davila, 461 F.3d 298, 308 (2d Cir. 2006) 8 (internal quotation marks, citation, and ellipsis omitted), cert. 9 denied, 127 S. Ct. 1485 (2007). Typically, to state an offense, 10 an indictment "need only track the language of the statute and, 11 if necessary to apprise the defendant of the nature of the 12 accusation against him, state time and place in approximate 13 terms." United States v. Flaharty, 295 F.3d 182, 198 (2d Cir.) 14 (internal quotation marks, citation, and ellipsis omitted), cert. 15 denied, 537 U.S. 936 (2002). 16 The grand jury charged Frias with violating 21 U.S.C. 17 § 848(e)(1)(A), which provides in relevant part as follows: 18 [A]ny person . . . engaging in an offense 19 punishable under section 841(b)(1)(A) of this 20 title . . . who intentionally kills or 21 counsels, commands, induces, procures, or 22 causes the intentional killing of an 23 individual and such killing results, shall be 24 sentenced to any term of imprisonment, which 25 shall not be less than 20 years, and which 26 may be up to life imprisonment, or may be 27 sentenced to death. 28 The indictment against Frias charges: 29 On or about September 21, 1991, in the 30 Southern District of New York, while engaged 31 in an offense punishable under Section 32 841(b)(1)(A) of Title 21, United States Code, 33 namely, a conspiracy to distribute andWe note that Frias preserved this issue below but did not 7 raise it on appeal until he filed a reply brief. We exercise our discretion to consider the claim because it was fully briefed and argued before the district court and because the government addressed generally the reasonableness of Frias's sentence in its own brief on appeal. 13 1 possess with intent to distribute one 2 kilogram and more of heroin and five 3 kilograms and more of cocaine, OCTAVIO FRIAS, 4 the defendant, and others known and unknown, 5 unlawfully, intentionally, and knowingly 6 killed, counseled, commanded, induced, 7 procured and caused the intentional killing 8 of Mario Lobo, a/k/a, "Alberto Cruz," in a 9 restaurant located at 1490 St. Nicholas 10 Avenue in Manhattan. 11 United States v. Frias, No. 01 Cr. 307, Superseding Indictment, 12 dated January 2, 2003. The indictment plainly tracks the 13 language of the statute and states the time and place of the 14 alleged murder. It was therefore sufficient to invoke the 15 district court's jurisdiction and to state an offense. 16 Last, we conclude that the district court's sentence on 17 remand was reasonable. In imposing a sentence, the district 18 court is required to consider, among other things, "the need to 19 avoid unwarranted sentence disparities among defendants with 20 similar records who have been found guilty of similar conduct." 21 18 U.S.C. § 3553(a)(6); see Kimbrough v. United States, 128 S. 22 Ct. 558, 574 (2007). Frias argues that his sentence was 23 unreasonable because he received a life sentence whereas his co24 defendant, Martinez-Martinez, was equally culpable and received a 25 sentence of only 25 years.This argument is unavailing. We 7 26have held that section 3553(a)(6) requires a district court to 27 consider nationwide sentence disparities, but does not require a"We do not, as a general matter, object to district 8 courts' consideration of similarities and differences among co-defendants when imposing a sentence." Wills, 476 F.3d at 110. 14 1 district court to consider disparities between co-defendants. 2 United States v. Wills, 476 F.3d 103, 109-11 (2d Cir. 2007).In 8 3 any event, Frias and Martinez-Martinez are not similarly 4 situated. One highly relevant difference between them is that 5Martinez-Martinez pleaded guilty to two counts that carried a 6 statutory maximum sentence of 25 years, whereas Frias's offense 7 of conviction carries a statutory range of 20 years to life and a 8 Guidelines sentence of life. "[I]n the overwhelming majority of 9 cases, a Guidelines sentence will fall comfortably within the 10broad range of sentences that would be reasonable . . . ." 11 United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.), cert. 12 denied, 127 S. Ct. 192 (2006). We conclude that Frias's sentence 13 of life imprisonment for conspiracy to commit murder in violation 14 of 21 U.S.C. § 848(e)(1)(A) in connection with a narcotics 15 offense punishable under 21 U.S.C. § 841(b)(1)(A) falls 16 comfortably within that range. 17 * * * 18 For the foregoing reasons, the amended judgment of the 19 district court is affirmed.