UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4392

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JERMAINE LAVONNE CHASE, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of Virginia, at Roanoke. Jackson L. Kiser, Senior 

District Judge. (7:94-cr-40106-jlk-5) 

Submitted: October 27, 2009 Decided: November 30, 2009 

Before WILKINSON, MICHAEL, and KING, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Larry W. Shelton, Federal Public Defender, Christine Madeleine 

Lee, Research and Writing Attorney, Roanoke, Virginia, for 

Appellant. Ray Burton Fitzgerald, Jr., OFFICE OF THE UNITED 

STATES ATTORNEY, Jean Barrett Hudson, Assistant United States 

Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Jermaine Chase seeks to appeal the district court’s 

grant of his 18 U.S.C. § 3582(c) motion, in which Chase sought a 

reduction of his sentence. The Government has filed a motion to 

dismiss the appeal as untimely. While we deny the Government’s 

motion to dismiss, we affirm the district court’s grant of 

Chase’s § 3582(c) motion. 

 The underlying procedural history of this case is 

long-standing, and well known to the parties. Thus we will not 

repeat it here. Pertinent to the issues presently on appeal are 

the following facts. While an appeal was previously pending in 

this court from the district court’s May 24, 2007 Amended 

Judgment, entered based on the March 23, 2007 directive of this 

court, the district court entered an order reducing Chase’s 

sentence from 360 to 292 months’ imprisonment on his conviction 

pursuant to 21 U.S.C. § 846 (2006), for conspiracy to possess 

with the intent to distribute cocaine and cocaine base (“crack”) 

(Count 1). The reduction was made pursuant to U.S. Sentencing 

Guidelines Manual § 2D1.1 (2007) (“Amendment 706”). As the 

prior filing of the notice of appeal divested the district court 

of jurisdiction to enter the order, we granted Chase’s motion 

for remand to confer jurisdiction upon the district court, and 

remanded the case for the limited purpose of allowing the 

district court to consider the propriety of resentencing Chase 

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in accordance with the then newly-amended crack cocaine 

sentencing guideline, Amendment 706. On December 18, 2008, the 

district court reentered an order granting Chase a reduction of 

his sentence on Count 1 from 360 months to 292 months’ 

imprisonment. 

 Chase filed a motion for reconsideration, arguing that 

the 292-month sentence imposed by the district court for 

conspiracy to distribute crack cocaine exceeded the 240-month 

statutory maximum for that conviction, in violation of Apprendi 

v. New Jersey, 530 U.S. 466 (2000). The district court denied 

the motion on January 27, 2009. Chase filed a motion to correct 

the order denying his motion for reconsideration, on the ground 

that he was not convicted of possession with intent to 

distribute 50 grams or more of cocaine base. Following a 

hearing, the district court entered an amended order on March 6, 

2009, vacating its January 27, 2009 order, and denying Chase's 

motion to reconsider the December 18, 2008 order reducing his 

sentence to 292 months pursuant to § 3582(c). Citing to United 

States v. Dunphy, 551 F.3d 247, 254 (4th Cir. 2009), cert. 

denied, 129 S. Ct. 2401 (2009), and to USSG § 1B1.10(a)(3), the 

district court reasoned that the sentence reduction in a 

§ 3582(c) proceeding is not a full resentencing, and that it was 

accordingly limited to considering the effect of the retroactive 

amendment only, and not any other sentencing or guidelines 

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issues. The district court found that Chase’s argument that his 

sentence violated Apprendi, is a “new issue outside the scope of 

§ 3582(c) because it is unrelated to any change in the 

sentencing guidelines,” that Chase’s Apprendi argument had 

already been raised in the district court and on appeal, and 

that this court explicitly twice affirmed Chase’s 360-month 

concurrent sentence. On March 12, 2009, the district court 

modified its order without changing the substantive ruling. 

 On March 12, 2009, Chase filed the presently-pending 

appeal, contending that he is appealing the final order of the 

district court entered on March 6, 2009. The Government has 

filed a motion to dismiss the appeal as untimely, contending 

that, while Chase’s notice of appeal designates the district 

court’s March 6, 2009 order as the order being appealed, Chase 

actually seeks to appeal the order of December 18, 2008, 

granting Chase’s § 3582(c) motion. 

 We first address the Government’s motion to dismiss 

Chase’s appeal. A defendant’s notice of appeal in a criminal 

case must be filed within ten days after the entry of the 

judgment or order being appealed. Fed. R. App. P. 4(b)(1)(A). 

Time limits set forth in Rule 4(b) are non-jurisdictional. 

United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009). 

 The district court entered its order granting Chase’s 

motion for reduction of sentence pursuant to § 3582(c) on 

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December 18, 2008. Although the Federal Rules of Criminal 

Procedure and Federal Rules of Appellate Procedure 4(b) do not 

provide for tolling of the ten-day appeal period for the filing 

of a motion for reconsideration, we have held that the filing of 

such a motion delays the time period for filing the notice of 

appeal until after the motion has been ruled upon. United 

States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993) (citing 

United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991)). Thus, 

because Chase filed a motion to reconsider and amend the 

judgment by the January 5, 2009 deadline for filing his notice 

of appeal, the time for filing the appeal notice was delayed 

until the district court’s issuance of its order denying that 

motion on January 27, 2009. The new deadline for the filing of 

Chase’s notice of appeal from the grant of his motion for 

reduction of sentence, then, was February 10, 2009. See Fed. R. 

App. P. 26. Rather then filing a notice of appeal, Chase filed 

a “Motion to Amend/Correct Order on Motion for Reconsideration” 

on January 28, 2009, upon consideration of which motion, as 

noted above, the district court vacated its January 27, 2009 

order and denied the motion to reconsider its grant of Chase’s 

§ 3582(c) motion. 

 In its motion to dismiss, the Government argues that, 

while the filing of the first motion for reconsideration tolled 

Chase’s appeal period relative to his motion for reduction of 

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sentence, his filing of the second motion to reconsider did not 

have that same effect. It asserts, therefore, that Chase’s 

notice of appeal, ultimately filed on March 12, 2009, the same 

day as the entry of the district court’s (modified) order 

denying his motion to amend/correct, was ineffectual to give 

jurisdiction to this court to consider the merits of the 

December 18, 2008 grant of Chase’s motion for reduction of 

sentence. 

 The problem with the Government’s analysis is that, in 

its order ruling on Chase’s second motion for reconsideration, 

the district court expressly vacated its January 27, 2009 order 

denying Chase’s motion for reconsideration. Thus, when the 

district court, on March 6, 2009, denied Chase’s motion for 

reconsideration of the grant of his § 3582(c) motion, it 

effectively restarted the clock for the filing of Chase’s notice 

of appeal from the denial of his first motion for 

reconsideration. 

 Given this Court’s pronouncement in Urutyan that time 

limits for the filing of appeals in criminal cases are nonjurisdictional, given the unique circumstances present in this 

case,* and giving Chase every possible benefit of the 

 

(Continued) 

*

 Included in these unique circumstances is the fact that 

Chase’s notice of appeal was filed within the thirty-day 

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construction of the rules regarding the timeliness of appeals, 

we find that because Chase’s March 12, 2009 notice of appeal was 

timely as to the denial of his motion for reconsideration, as 

set forth in the district court’s March 6, 2009 order (as 

modified on March 12, 2009), this court has jurisdiction to 

consider Chase’s appeal. Therefore, we deny the Government’s 

motion to dismiss Chase’s appeal from the December 18, 2009 

grant of his § 3582(c) motion. 

 The substance of Chase’s appeal as to the district 

court’s grant of his § 3582(c) motion is his argument that even 

though the district court lowered his sentence on his crack 

cocaine conspiracy conviction two levels pursuant to Amendment 

706 to the sentencing guidelines, from 360 months’ imprisonment 

to 292 months’ imprisonment, it erred in failing to lower his 

sentence to 240 months, which is the statutory maximum for his 

conviction. He asserts that his case is distinguishable from 

Dunphy, such that the district court could have resentenced him 

when it considered his § 3582(c) motion, because his sentence is 

unconstitutional. 

 We find no merit to Chase’s claims. First, in Dunphy, 

we held that proceedings under § 3582(c)(2) do not constitute a 

 

excusable neglect period provided for in Fed. R. App. P. 

4(b)(4). 

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full resentencing of the defendant. Dunphy, 551 F.3d at 251-53 

(rejecting defendant’s argument that United States v. Booker, 

543 U.S. 220 (2005), should apply to § 3582 proceeding). There 

is nothing in Dunphy that limits this rule based on the 

constitutionality of the original sentence, and the district 

court correctly relied on Dunphy in refusing Chase’s request for 

resentencing beyond that prescribed by Amendment 706. 

 Second, Chase’s 360-month sentence was not infirm. As 

noted by the district court, this court twice explicitly 

affirmed Chase’s 360-month concurrent sentence. See United 

States v. Chase, 296 F.3d 247, 253 (4th Cir. 2002) (holding that 

the imposition of a single 360-month term for conspiracy, 

although erroneous, was harmless); United States v. Chase, 1999 

WL 1054140, at *2 (4th Cir. Nov. 22, 1999) (No. 98-4665) 

(remanding for consideration of post-offense rehabilitation 

departure, but affirming sentence in all other respects). See

also United States v. White, 238 F.3d 537, 542-43 (4th Cir. 

2001). Hence, this court already has upheld Chase’s 360-month 

sentence and will not further entertain his continued claims 

that his 360-month sentence violated Apprendi or was otherwise 

unconstitutional. 

 Third, when this court remanded the case to the 

district court on December 16, 2008, the remand was expressly 

limited to confer jurisdiction to the district court to allow it 

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to consider the propriety of resentencing Chase in accordance 

with Amendment 706. Therefore, the district court was 

foreclosed by the mandate rule from revisiting the issue of the 

legality of Chase’s sentence except as it related to the amended 

guidelines. See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 

1993) (stating that the mandate rule “forecloses relitigation of 

issues expressly or impliedly decided by the appellate court,” 

as well as “issues decided by the district court but foregone on 

appeal.”); see also Volvo Trademark Holding Aktiebolaget v. 

Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007). Thus, the 

district court had no authority in any event to resentence Chase 

except pursuant to Amendment 706. 

 Hence, we find no error in the district court’s grant 

of a two-level reduction in Chase’s sentence based on Amendment 

706, and further find that the district court’s grant of Chase’s 

§ 3582(c) motion was not an abuse of discretion. See United 

States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004). Chase’s 

292-month sentence, as set forth in the district court’s March 

12, 2009 order, is affirmed. 

 Accordingly, we deny the Government’s motion to 

dismiss Chase’s appeal as untimely, and affirm the district 

court’s grant of Chase’s § 3582(c) motion. We dispense with 

oral argument because the facts and legal contentions are 

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adequately presented in the materials before the court and 

argument would not aid the decisional process. 

AFFIRMED