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

19 under 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

18 Appellate 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

27 murder while engaged in a conspiracy to distribute and possess

28 with intent to distribute more than one kilogram of heroin and
 Judge Allen G. Schwartz, who presided at trial, passed 1

away shortly thereafter. The case was then reassigned to Judge

Keenan for sentencing.

3

1 more 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

5 Mario 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

9 paid 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

18 proceedings 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

23 various sentencing errors. Frias also concedes that his appeal
 Rule 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

8 whether 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

16 us from adjudicating the merits of an untimely appeal. See 2
notice –- 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

9 v. 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

26 Rule 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

30 between 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

9 Rule 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; see
8

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

5 procedure, 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

9 Rule 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, a
 We 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 for
10

1 prescriptions delineating the classes of cases (subject-matter

2 jurisdiction) and the persons (personal jurisdiction) falling

3 within 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

18 merits 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 ordinarily
 The 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.

6 United 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 an
12

1 offense." The Federal Rules of Criminal Procedure provide that

2 such a challenge may be heard "at any time while the case is

3 pending." 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 and
 We 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

26 have 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

5 Martinez-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

10 broad 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.