REVISED, April 29, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-30130

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ERIC CARMOUCHE,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

April 14, 1998

Before GARWOOD, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:

Eric Carmouche pleaded guilty to unlawful possession of a

short barrel shotgun in violation of 26 U.S.C. § 5861(d).

Carmouche was sentenced to 27 months imprisonment to be followed by

a 24 month period of supervised release. Carmouche appeals his

sentence. We affirm. 

BACKGROUND

Police searched Carmouche’s rural property after receiving a

tip that Carmouche was involved in the disappearance of a cow. Two
2

separate searches uncovered, not only the remains of the dead cow,

but also a United States Army blasting machine, a .45 caliber

automatic handgun, a sawed off shotgun accompanied by an extra

barrel less than 18 inches in length, a .223 caliber rifle

accompanied by parts to make it fully automatic, bomb detonation

cords, a blasting cap, and numerous boxes of small ammunition and

gun powder. Carmouche was subsequently charged with unlawful

possession of: (1) a machine gun; (2) a short barrel shotgun; and

(3) an explosive device. 

Carmouche agreed to plead guilty to count 2, which alleged

unlawful possession of a short barrel shotgun, as defined in 26

U.S.C. § 5845(a)(1) and (d) and in violation of 26 U.S.C. §

5861(d). Counts 1 and 3 were dismissed pursuant to Carmouche’s

plea agreement. Carmouche was sentenced using a base offense level

of 18 because his offense involved a firearm defined in 26 U.S.C.

§ 5845(a). See U.S.S.G. § 2K2.1(a)(5). The district court imposed

a one-level increase because the offense involved three weapons,

see U.S.S.G. § 2K2.1(b)(1)(A), and a two-level increase because the

offense involved a “destructive device,” see U.S.S.G. §

2K2.1(b)(3). The district court also granted a three-level

reduction for acceptance of responsibility. Thus, Carmouche was

sentenced using a net base offense level of 18. On November 12,

1996, the district court entered judgment against Carmouche.

Six days later, on November 18, 1997, Carmouche filed a

pleading entitled “Motion to Correct Sentence Pursuant to Rule

35(c) Fed. R. Crim. P. and for Evidentiary Hearing.” Carmouche
3

argued that the district court erred by: (1) imposing sentence for

possession of a shotgun barrel, rather than a shotgun; (2) applying

the 1995 version of the sentencing guidelines; (3) imposing a

three-level adjustment for the possession of other firearms and

explosive devices; and (4) refusing to depart downward. More than

sixty days later, on January 22, 1997, the district court entered

an order denying Carmouche’s November 18 motion. The following

day, Carmouche filed a notice appealing his sentence and the

district court’s January 22 order denying the November 18 motion to

correct his sentence. 

On appeal, Carmouche urges again the arguments presented in

the November 18 motion to correct his sentence. The government

responds that this Court is without jurisdiction because Carmouche

failed to file a timely notice of appeal. Prior to oral argument,

the government also filed a motion to dismiss for lack of

jurisdiction, which has been carried with the case. 

DISCUSSION

1. Appellate Jurisdiction

The threshold issue in this case, and one that is

determinative of our jurisdiction, is whether Carmouche’s November

18 motion to correct his sentence suspended the ten-day time period

for filing an appeal. See FED. R. APP. P. 4(b). We conclude that

it did and that we therefore have jurisdiction to entertain

Carmouche’s appeal. See United States v. Moya, No. 94-10907 (5th

Cir. July 25, 1995)(unpublished), and 5th Cir. R. 47.5.3.
4

Moya construed a motion labelled as a Rule 35(c) motion as

“one of the species of motions for reconsideration” which suspend

the running of the 10-day period of FRAP 4(b). See Moya, No.

9410907, at 3-4. Although unpublished, Moya is binding precedent

in this Circuit because it was issued before January 1, 1996. See

5th Cir. R. 47.5.3. Carmouche filed his November 18 motion,

captioned as authorized by Federal Rule of Criminal Procedure

35(c), six days after the court entered judgment and thus within

the time period allowed for filing an appeal. Once filed, that

motion prevented the running of the 4(b) period, and extended the

time for filing an appeal until the district court disposed of that

motion on January 22, 1997. Therefore, Carmouche’s notice of

appeal, which was filed one day after the district court denied his

motion, was timely. We have jurisdiction to consider the merits of

Carmouche’s appeal. 

2. The Shotgun Barrel

Carmouche pleaded guilty to count 2, which charged possession

of a short barrel shotgun, as defined in 26 U.S.C. § 5845(a)(1) and

(d) and in violation of 26 U.S.C. § 5861(d). Carmouche was

sentenced using sentencing guideline § 2K2.1, the guideline

applicable when the firearm is one defined by § 5845(a). Carmouche

argues on appeal that his conviction for violation of § 5861(d) is

invalid because the detached barrel found at his house does not

meet the technical definition given for a short barrel shotgun in
5

18 U.S.C. § 5845(a)(1) and (d). As a result, Carmouche contends

that the district court’s application of guideline § 2K2.1(a)(5)

was error. 

By disputing the district court’s decision that Carmouche’s

offense involved a § 5845(a) firearm, and the district court’s

subsequent reliance upon guideline § 2K2.1(a)(5), Carmouche hopes

to reap the benefit of § 2K2.1(b)(2). Section 2K2.1(b)(2)

specifies a total base offense level of six when the firearm is

possessed solely for lawful sporting purposes or collection. The

favorable offense level provided in § 2K2.1(b)(2) is made expressly

unavailable when the offense involves a firearm defined in §

5845(a). U.S.S.G. § 2K2.1 application note 10. 

Carmouche’s plea is supported by a sufficient factual basis.

The parties’ joint Rule 11(f) factual stipulation recites that the

police found the shotgun and the shotgun barrel, which was “made to

fit the shotgun” and was less than thirteen inches long, “[i]n

close proximity.” The PSR reports that Carmouche knowingly,

intentionally and unlawfully possessed a shotgun with a barrel

length of twelve and one-half inches. Carmouche received a threelevel reduction in his base offense level because he accepted

responsibility for the relevant conduct described in the PSR. Of

equal importance, Carmouche pleaded guilty to the indictment as

charged and has not formally challenged his plea, either in the

district court or in this Court, where his notice of appeal is

limited to sentencing issues. The district court did not err by
6

applying § 2K2.1(a)(5), the guideline applicable to Carmouche’s

offense, or by refusing to apply § 2K2.1(b)(2) to reduce

Carmouche’s sentence.

3. The Applicable Guidelines

Carmouche next contends that the district court erred by

applying the 1995 version of the sentencing guidelines instead of

the 1993 version, which the plea agreement stated would be used to

derive Carmouche’s sentence. Carmouche did not object to the

district court’s application of the 1995 version until he filed his

motion for reconsideration of sentence. 

The district court’s application of the 1995 guidelines was

not reversible error. Although the plea agreement recites that the

1993 guidelines will be used, not every breach of a plea agreement

requires reversal. United States v. Hooten, 942 F.2d 878, 884 (5th

Cir. 1991). The guidelines in effect at the time of sentencing are

to be used unless application of the current guidelines would

implicate the ex post facto clause. U.S.S.G. § 1B1.11. Carmouche

claims that the ex post facto clause is implicated here because

§ 2K2.1(b)(2), providing a base offense level of six when firearms

are possessed for hunting or collection purposes, was deleted from

the guidelines in 1994. Carmouche is incorrect. Section

2K2.1(b)(2) appears in identical form in both the 1993 and 1995

version of the guidelines. Indeed, an examination of the 1993 and

1995 versions of the guidelines yields the conclusion that the

provisions are substantively identical for all purposes relevant to

this appeal. There are, therefore, no ex post facto concerns
7

requiring application of the 1993 guidelines. In addition, because

Carmouche was not prejudiced by the district court’s application of

the 1995 guidelines, any error was also harmless. 

4. Failure to Hold Evidentiary Hearing

The district court increased Carmouche’s base offense level by

two levels because the offense involved “destructive devices”

seized from Carmouche’s house. See U.S.S.G. § 2K2.1(b)(3). The

guidelines define destructive devices as including any of a variety

of destructive or explosive items, and any firearm that will, or

can be readily converted to, “expel a projectile by the action of

an explosive or other propellant,” or any combination of parts

designed or intended for converting a device into a destructive

device. U.S.S.G. § 2K2.1 application note 4. On appeal, Carmouche

argues that the district court erred by failing to grant an

evidentiary hearing to explore Carmouche’s contention that the

explosive devices seized from his home belonged to another person,

who was storing the items at Carmouche’s house. 

An assortment of firearms and explosive materials were found

at Carmouche’s residence, including explosive RDX, explosive FFGg

black powder, Hercules Red Dot double base explosive shotgun

powder, Winchester Western explosive double base powder, and a

section of explosive detonating cord .20 inches in diameter

containing explosive PETN. Even if some of these items belonged to

another individual, the subject offense is possession and there is

no dispute that the items were found in Carmouche’s possession at

his rural residence, where he lived alone. Additionally, Carmouche
8

was required to accept responsibility for all relevant conduct,

including possession of the additional firearms and explosive

devices, in order to receive a three level reduction for acceptance

of responsibility. Having reviewed the record, we cannot conclude

that the district court erroneously failed to conduct an

evidentiary hearing to consider whether Carmouche had both title

and possession of these dangerous destructive devices. 

5. Failure to Depart

Carmouche contends that the district court erred by refusing

to depart downward because this case falls outside the heartland of

those offenses contemplated by § 2K2.1. See U.S.S.G., Ch. 1, Pt.

A, 4(b). 

A district court’s refusal to grant a downward departure is

not reviewable on appeal unless the refusal is a violation of law.

United States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997). We

have previously held that a refusal to depart violates the law when

the district court’s refusal is based upon the mistaken belief that

the court is without authority to depart. Id. at 222. We have no

jurisdiction, however, when the district court’s refusal to depart

is based upon the determination that departure is not warranted on

the facts of the case. Id.

The district court concluded the sentencing hearing with the

remark that it did not consider Carmouche to be a menace, but that

it had “no choice” with respect to Carmouche’s sentence because the

government had not filed a motion requesting departure. Thus,

Carmouche maintains that the district court failed to recognize its
9

authority to depart on the theory that Carmouche’s conduct was

outside the heartland defined by the applicable guidelines. 

We disagree. The district court’s concluding remarks were not

directed to any particular objection or argument of the defendant.

With respect to Carmouche’s “heartland” argument, the district

expressly found that there was “no reason to depart from the

sentence called for by the application of the guidelines inasmuch

as the facts as found are of a kind contemplated by the Sentencing

Commission.” We have no jurisdiction to review the district

court’s determination that a departure was not warranted on the

facts of Carmouche’s case. Id.

For the foregoing reasons, the government’s motion to dismiss

is DENIED and the district court is in all respects AFFIRMED.

ENDRECORD 

DeMOSS, Circuit Judge, specially concurring:

The members of the panel are in agreement that we have

appellate jurisdiction to consider the merits of Carmouche’s appeal

because his November 18 motion suspended FRAP 4(b)’s ten-day time

period for filing an appeal until such time as the district court

ruled on that motion. We disagree, however, about why Carmouche’s

motion had that effect. My colleagues have written separately to

emphasize that they feel reluctantly bound by this Court’s
10

unpublished disposition in United States v. Moya, No. 94-10907 (5th

Cir. July 25, 1995). They have urged the en banc Court to

reconsider its precedent in Moya. I write separately because I do

not read Moya to decide any bold new issue of law that requires the

Court’s en banc attention. Rather, Moya is premised upon sound

Fifth Circuit authority, authority which I believe to be rightly

decided and which I am not inclined at this juncture to question.

FRAP 4(b) AND THE HEALY DOCTRINE

Federal Rule of Appellate Procedure 4(b) provides that an

appeal must be filed within ten days after the entry of judgment.

FED. R. APP. P. 4(b). That time period can be suspended, however,

by the timely filing of certain post-judgment motions within the

time period allowed for the filing of a notice of appeal. FRAP

4(b) includes a list of rule-based motions that effectively suspend

the ten-day time period for filing an appeal. Id. In addition to

those rule-based motions listed in FRAP 4(b), the Supreme Court

allows a common law “motion for reconsideration” to suspend the

time period for filing an appeal in a criminal matter. E.g.,

United States v. Healy, 84 S. Ct. 553, 556-57 (1964). The Healy

doctrine is applied notwithstanding the absence of any statutory or

rule-based authority for allowing the judicially created motion for

reconsideration to have a suspensory effect. United States v.

Dieter, 97 S. Ct. 18, 19-20 & n.3 (1976); Healy, 84 S. Ct. at 556;
11

United States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995),

corrected without substantive change, 1997 WL 447234 (5th Cir.

1995); United States v. Greenwood, 974 F.2d 1449, 1466 (5th Cir.

1992). Rather, Supreme Court decisions premise the Healy doctrine

upon long-standing criminal practice and the judicial efficiency

achieved by allowing the district court to correct possible errors

prior to a time consuming and potentially unnecessary appeal.

Dieter, 97 S. Ct. at 19-20; Healy, 84 S. Ct. at 556; Greenwood, 974

F.2d at 1466-67. 

Our Court has been “quite permissive about what qualifies as

a ‘motion for reconsideration.’” Id. at 1466. When making that

determination, the suspensory effect of a particular motion does

not depend upon the caption selected by the movant. E.g., Dieter,

97 S. Ct. at 19 (“[i]t is true that the Government’s post-judgment

dismissal motion was not captioned a ‘petition for rehearing,’ but

there can be no doubt that in purpose and effect it was precisely

that”); Moya, No. 94-10907 at 3-4 (5th Cir. July 25, 1995)

(construing criminal defendant’s Rule 35(c) motion to be a motion

for reconsideration); Greenwood, 974 F.2d at 1465-66 (construing

government’s motion for resentencing to be a motion for

reconsidera-tion). To the contrary, “any request, however phrased,

that a district court reconsider a question decided in the case in

order to effect an alteration of the rights adjudicated,” should be

construed as a motion for reconsideration. Greenwood, 974 F.2d at
12

1465-66 (internal quotations and alterations omitted); see also

United States v. Ibarra, 112 S. Ct. 4, 7 (1991); Dieter, 97 S. Ct.

at 19-20. 

MOYA APPLIES ESTABLISHED PRECEDENT

I do not read Moya to hold that a motion filed under Federal

Rule of Civil Procedure 35(c) suspends the appellate timetable.

Instead, Moya rejects the Rule 35(c) caption employed by the

defendant and construes the defendant’s motion to be a common law

motion for reconsideration. Moya then applies the well-established

Healy doctrine to permit the defendant’s motion for reconsideration

to have a suspensory effect on FRAP 4(b)’s time period. As

demonstrated above, Moya’s rejection of the caption selected by the

defendant and its liberal construction of the subject motion as a

motion for reconsideration are well supported by existing

precedent.

FRAP 4(b) was amended in 1993 to add a list of motions that

are capable of having a suspensory effect on the ten-day time

period for filing an appeal. My colleagues find significance in

the fact that Carmouche’s motion is not among those listed in FRAP

4(b). But our application of the Healy doctrine is not derived

from or dependent upon any rule-based or statutory authority.

Dieter, 97 S. Ct. at 19 n.3; Healy, 84 S. Ct. at 556; Brewer, 60

F.3d at 1144; Greenwood, 974 F.2d at 1466. We have therefore held
13

that the 1993 amendment to FRAP 4(b) does not prevent us from

permitting a common law motion for reconsideration of a type not

articulated in FRAP 4(b) to have a suspensory effect on the

appellate time table. E.g., Brewer, 60 F.3d at 1143-44.

Neither is this the first time that our Court has applied the

Healy doctrine to a criminal defendant’s request for

reconsideration of a sentencing decision. See Greenwood, 974 F.2d

at 1464-71. Even United States v. Morillo, 8 F.3d 864 (1st Cir.

1993), which my colleagues cite as guiding extra-circuit authority,

begins its analysis with an inquiry to determine whether the

defendant’s motion, styled in that case as a “motion to correct

sentence,” is in substance a motion for reconsideration, or

instead, a motion properly brought under Federal Rule of Civil

Procedure 35(c). Id. at 867-68. Relying upon the “numerical”

nature of the error alleged, the Court construed the relief

requested to be within the ambit of Rule 35(c). Id. at 868. 

I have no problem concluding in this case that Carmouche’s

motion is, in subject and effect, a motion for reconsideration of

the district court’s sentencing decisions. Rule 35(c) is intended

to redress technical or obvious sentencing error that is so clear

that the case would “almost certainly be remanded” for correction.

FED. R. CRIM. P. 35(c) advisory committee note. Rule 35(c) is not

an appropriate vehicle for requesting that the district court

reconsider its application or interpretation of the sentencing
14

guidelines. Id. (Rule 35(c) “is not intended to afford the court

the opportunity to reconsider the application or interpretation of

the sentencing guidelines or for the court simply to change its

mind about the appropriateness of the sentence”).

Carmouche’s motion presents several arguments, most of which

were argued to the district court and rejected at sentencing.

Carmouche’s request that the district court apply Rule 35(c) to

lower his sentence based upon substantive errors argued at

sentencing is inappropriate. The errors Carmouche identified are

neither technical nor inadvertent, but instead reflect the

considered judgment of the district court that Carmouche was not

entitled to relief. Carmouche’s motion is appropriately construed

as a request that the district court reconsider its sentencing

decisions. That being the case, there is no need in this case to

decide, as the First Circuit did in Morillo, whether a Rule 35(c)

motion can or should suspend FRAP 4(b)’s ten-day time period. 

Moya does nothing more than construe Carmouche’s sentencing

motion to be a motion for reconsideration, which suspended the time

for filing an appeal until the district court decided the motion.

Such motions have been liberally construed to suspend the time for

filing an appeal, without regard to the caption selected by the

parties, and without regard to whether the relief requested falls

within the scope of those motions listed in FRAP 4(b). I conclude

that Moya is premised upon sound authority and does not by itself
 

1 The Court has not clearly resolved whether the limitations

specified in 18 U.S.C. § 3582 are exclusive and jurisdictional.

See Lopez, 26 F.3d at 515 n.3. 

15

create any new or objectionable rule of law. 

GREENWOOD CONTROLS THE REAL ISSUE

The real sticking point in this case is the possible tension

between the district court’s limited authority to either grant or

deny a defendant’s post-judgment sentencing motion and this Court’s

authority under the Healy doctrine to permit a motion requesting

such relief to suspend the ten-day time period for filing an

appeal.

The district court’s jurisdiction to correct a sentence

pursuant to Rule 35(c) ends seven days after judgment is entered.

See United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997);

United States v. Lopez, 26 F.3d 512, 518-20 (5th Cir. 1994) (both

holding that Rule 35(c)’s seven day time limit for action by the

district court is jurisdictional). However, and although neither

the government nor my colleagues raise this point, the district

court’s authority to correct an erroneous sentence is also limited

by statute. See 18 U.S.C. § 3582. Neither Rule 35(c) nor 18

U.S.C. § 3582 authorize the district court’s order denying

Carmouche’s post-judgment sentencing motion. Thus it is clear that

the district court lacked authority, and perhaps jurisdiction, to

decide Carmouche’s motion when it was denied on January 22.1 
16

There is a distinction, however, between the district court’s

authority to either grant or deny Carmouche’s motion, and our

authority under the Healy doctrine to permit that motion a

suspensory effect. My colleagues would follow the First Circuit’s

lead in Morillo by holding that the district court’s authority to

correct an erroneous sentence is necessarily coextensive with the

suspensory effect given a motion for reconsideration of sentencing

issues. My response is that we considered and rejected that

precise contention in United States v. Greenwood, 974 F.2d 1449

(5th Cir. 1992). 

Greenwood grappled with the relationship between the district

court’s authority to grant the subject sentencing motion and this

Court’s application of the Healy doctrine. The Court expressly

avoided deciding whether the district court had any “inherent”

authority to correct a sentence, and held instead that simple

application of the Healy doctrine rendered any inquiry into the

extent of the district court’s corrective powers unnecessary.

Greenwood, 974 F.2d at 1470-72. Thus, the Court recognized that

the scope of the district court’s corrective powers and the

suspensory effect that Supreme Court authority permitted a common

law motion for reconsideration are distinct. Id. As a result,

Greenwood applied the Healy doctrine notwithstanding an apparently

valid contention that the district court lacked continuing

authority to grant or deny the motion that was permitted to have
 

2 Ibarra is consistent with this approach. In that case, the

government appealed the district court’s adverse ruling on a motion

to suppress drugs. Ibarra, 112 S. Ct. at 4-5. The government

originally sought to justify the objectionable search on a theory

of continuing consent, but abandoned that theory in subsequent

pleadings. Id. The government attempted to revive the continuing

consent theory in a timely filed motion for reconsideration. Id.

The Tenth Circuit held that a motion for reconsideration premised

upon a disavowed theory is ineffective to suspend the time period

for filing an appeal. Id. at 6. The Supreme Court rejected that

analysis, holding that the likelihood of success on the merits is

immaterial to the Healy doctrine’s “bright-line” approach. Id. at

6-7. 

17

suspensory effect. Id. at 1470-71; United States v. Carr, 932 F.2d

67 (1st Cir. 1991) (holding that a timely motion for

reconsideration suspends the time period for filing an appeal until

the motion is decided, without regard to whether the district court

retains authority to correct the sentence as requested).2

MORILLO IS INCONSISTENT WITH GREENWOOD

Morillo, which my colleagues now urge upon the en banc Court,

takes a contrary view. In Morillo, the First Circuit concluded

that Rule 35(c) motions should be accorded a suspensory effect, but

that the appellate time period would begin to run again at the

expiration of seven days after entry of judgment, rather than when

the district court decided the motion. See Morillo, 8 F.3d at 869.

That holding in Morillo equates the district court’s jurisdiction

to grant or deny a particular motion with the effect that motion

will have on FRAP 4(b)’s appellate timetable. Id. Thus, Morillo’s

holding is in direct conflict with this Circuit’s authority in
18

Greenwood. I conclude that Greenwood, and its holding that our

authority under Healy can be distinguished from the district

court’s authority to grant the relief requested, presents the

principal source of disagreement in this case. For the sake of

clarity, any reconsideration of the issues raised by this case

should focus upon Greenwood, which articulates at length the basis

of its holding, rather than Moya, which merely applies the rule.

Neither am I persuaded that Greenwood is wrongly decided. My

colleagues cite Ibarra for the proposition that the Court should

adopt a “bright-line rule” that any motion filed under a Rule 35(c)

caption is ineffective to suspend the time period for filing an

appeal more than seven days past judgment. But the “bright-line”

rule announced in Ibarra, and invoked in Greenwood, requires

liberal construction of any post-judgment pleading that comes close

to requesting reconsideration of a question decided in the case as

a common law motion for reconsideration that is effective to

suspend FRAP 4(b)’s time period. Ibarra, 112 S. Ct. at 6-7;

Greenwood, 974 F.2d 1466-67. 

The Supreme Court has emphasized that when making that liberal

construction, we are not bound by the caption selected by the

parties, and should examine the substance of the motion filed to

determine whether the relief requested fits within the framework of

a common law motion for reconsideration. E.g., Dieter, 97 S. Ct.

at 19-20. Clearly, the Court is not free to condone an approach
19

that would effectively circumvent Rule 35(c) by construing every

Rule 35(c) motion to be a common law motion for reconsideration.

But I fail to see how the language cited by my colleagues, which

reads as a command to liberally construe post-judgment pleadings to

achieve the judicial efficiency justifying the Healy doctrine, can

be used as a sword to deny appellate review because counsel has

selected the wrong caption for the motion.

Litigants have no control over when or if the district court

will decide a pending post-judgment motion. The “bright-line” rule

established by the Supreme Court accords a post-judgment motion

suspensory effect whenever it requests reconsideration of a

question decided at trial that will effect an alteration of the

rights adjudicated. Ibarra, 112 S. Ct at 7; Dieter, 97 S. Ct. at

19-20; Greenwood, 974 F.2d at 1466-67. I do not agree that denying

review in a criminal case because there is a debatable issue about

whether the district court’s jurisdiction may have expired before

it decided a pending motion that would otherwise suspend the time

for filing an appeal will serve to “protect” the interests of the

parties. I would therefore adhere to the Court’s holding in

Greenwood.
DUHÉ, Circuit Judge, with whom GARWOOD, Circuit Judge, joins

specially concurring:

While recognizing that we are bound by our unpublished

decision in Moya, supra, we write separately to urge this Court to

reconsider en banc Moya’s holding that a pending Fed. R. Crim. P.

35(c) motion will postpone running of the Fed. R. App. P. 4(b) time

period for filing a notice of appeal until the judge disposes of

the motion. We believe Moya was incorrectly decided for the

following reasons.

Moya held that a defendant’s motion to correct his sentence

under Fed. R. Crim. P. 35(c) was “one of the species of motions for

reconsideration” that prevent running of the ten-day 4(b) time

period until disposition of the motion. Moya, No. 94-10907, at 4.

The Moya panel recognized that a Rule 35(c) motion was not one of

those listed in Fed. R. App. P. 4(b) as postponing commencement of

the ten-day period. Id. at 3. Nevertheless, the panel included

Moya’s 35(c) motion within the class of “motions for

reconsideration” which the jurisprudence has traditionally given

suspensory effect. Id., citing United States v. Greenwood, 974

F.2d 1449, 1466 (5th Cir. 1992). Finally, the panel found that the

rule in Greenwood had survived the 1993 amendment to Rule 4(b).

Moya, No. 94-10907, at 4, citing United States v. Brewer, 60 F.3d

1142, 1144 (5th Cir. 1995).

We believe the en banc Court should overrule Moya because it
 

3Rule 35(c), eff. December 1, 1991, reads: “The Court, acting

within 7 days after the imposition of sentence, may correct a

sentence that was imposed as a result of arithmetical, technical or

other clear error.”

21

disregarded the language and implications of Rule 4(b), and because

it overlooked the effect of the 1991 amendment to Fed. R. Crim. P.

35 and Rule 35's accompanying Advisory Committee Notes. We also

urge the en banc Court to clarify the effect of a timely-filed Rule

35(c) motion on the running of the 4(b) period, in order to give

appellants a “bright-line” standard for determining when the tenday limitation on filing a notice of appeal begins to run. See,

e.g., United States v. Morillo, 8 F.3d 864, 869 (1st Cir. 1993).

Fed. R. Crim. P. 35 was amended in 19913 to codify a district

court’s “inherent authority” to correct an erroneous sentence. See

Fed. R. Crim. P. 35(c), advisory committee notes (1991 amendment).

The Advisory Committee Notes indicate that, while the Committee

wanted to explicitly recognize such authority, it also “believed

that the time for correcting such errors should be narrowed within

the time for appealing the sentence to reduce the likelihood of

jurisdictional questions in the event of an appeal....” Id. To

that end, the Committee

contemplat[ed] that the [district] court would

enter an order correcting the sentence and

that such order must be entered within the

seven (7) day period so that the appellate

process (if a timely appeal is taken) may

proceed without delay and without

jurisdictional confusion.
 

4We so recognized in United States v. Lopez, 26 F.3d 512, 518-

19 (5th Cir. 1994), where we also cited Morillo with approval. See

also United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994).

22

Id.

4

In light of new Rule 35(c), Fed. R. App. P. 4(b) was amended

to read, in pertinent part:

The filing of a notice of appeal under this

Rule 4(b) does not divest a district court of

jurisdiction to correct a sentence under

Fed.R.Crim.P. 35(c), nor does the filing of a

motion under Fed.R.Crim.P. 35(c) affect the

validity of a notice of appeal filed before

entry of the order disposing of the motion.

See Fed. R. App. P. 4(b)(amendment eff. Dec. 1, 1993) and advisory

committee notes (1993 amendment). Rule 4(b), as discussed above,

does not list a Rule 35(c) motion as one that postpones running of

the ten-day period for filing a notice of appeal.

Both of these statutory changes were in effect when Moya was

decided in 1995. Nonetheless, Moya summarily decided that a

defendant’s Rule 35(c) motion to correct his sentence, based on an

asserted error in imposing supervised release under 18 U.S.C. §

3565(a)(2), was a “motion for reconsideration” that effectively

postponed running of the 4(b) period until disposition of the

motion. Moya, No. 94-10907, at 3-4. The Moya panel did not

mention the Advisory Committee Notes to amended Rule 35(c), nor did

it consider the combined effect of amended Rule 35(c) and amended

Rule 4(b), except to observe that the Greenwood rule survived the
 

5Moya cited Brewer, supra, for the proposition that Greenwood

was unaffected by the 1993 amendments to Rule 4(b). See Brewer, 60

F.3d at 1144. We merely observe here that Brewer did not deal with

a Rule 35(c) motion at all -- instead, Brewer addressed the effects

on the 4(b) period of a motion to set aside a conviction rather

than a sentence. See id. at 1144-46.

 

6“timely” -- Webster’s Third New World Dictionary 2395 (3d ed.

1981).

 

7See United States v. Healy, 376 U.S. 75, 78-80 (1964). See

also United States v. Ibarra, 502 U.S. 1, 6-7 (1991); United States

v.

23

1993 amendments to Rule 4(b).5 Id., at 4.

Although we recognize that amended Rules 4(b), 35(c) and their

accompanying notes are subject to more than one interpretation, we

believe that the most reasonable construction is the one given by

the First Circuit in United States v. Morillo, 8 F.3d 864, 867-70

(1st Cir. 1993). There the First Circuit, guided by the erudite

pen of Judge Selya, held that:

(1) a motion under Rule 35(c) interrupts the

[4(b)] appeal period and renders a judgment

nonfinal only if it is brought within seven

days following the imposition of sentence; and

(2) the appeal period is restarted when the

district court decides a timeous6 Rule 35(c)

motion or at the expiration of seven days next

following imposition of sentence, whichever

first occurs.

Id. at 869. Morillo thus recognized two different aspects of the

issue: first, that the Healy doctrine continued to apply to a Rule

35(c) motion, notwithstanding the absence of a 35(c) motion from

the list of motions in Rule 4(b) that interrupt the ten-day appeal

period;7 and second, that application of the Healy doctrine is,
Dieter, 429 U.S. 6, 8 (1976)(per curiam); Greenwood, 974 F.2d at

1470-71.

24

however, limited to the seven-day period imposed by amended Rule

35(c). After seven days, the 35(c) motion is deemed denied, even

if still pending. Id.; see also United States v. Turner, 998 F.2d

534, 536 (7th Cir. 1993). In our view, the First Circuit’s

approach rationally effects the Advisory Committee’s desire to

balance judicial efficiency with a concern that “the appellate

process ... proceed without delay and without jurisdictional

confusion.” Fed. R. Crim. P. 35, advisory committee notes (1991

amendment).

To the extent that Moya can be interpreted as holding that all

Rule 35(c) motions indefinitely postpone running of the 4(b) period

(that is, until the court disposes of the motion), we would urge

the en banc Court either to overrule the decision, or at least to

clarify its holding. The Supreme Court itself has observed, in

refusing to accord suspensory effect only to meritorious motions

for reconsideration, that “[w]ithout a clear general rule litigants

would be required to guess at their peril the date on which the

time to appeal commences to run.” United States v. Ibarra, 502

U.S. 1, 7 (1991). For the same reason, we would decline to adopt

Judge DeMoss’s approach (see supra at ____) that a court accord

suspensory effect only to those 35(c) motions that are more

appropriately styled common-law “motions for reconsideration.”
 

8See, e.g., Greenwood, 974 F.2d at 1464-1471.

25

Such an approach, while it may find some support in case law

antedating the amendments to Rules 4(b) and 35,8 would fail to

accord to potential appellants (whom, after all, the “bright line”

rule is here intended to protect) a sufficient yardstick by which

to measure the time within which to file a notice of appeal.

For the moment, however, we bow our heads to Moya’s

precedential force and find that Carmouche’s appeal was timely.