* The Honorabl e David L . Bunning, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern Distri ct of Kentucky, si tting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0031P (6th C ir.) File Name: 04a00 31p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

M ICHAEL I. M ONUS , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-4102

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 93-00034—Peter C. Economus, District Judge.

Argued: December 4, 2003 Decided and Filed: January 26, 2004

Befor e: SIL ER and GI

LMAN , Circuit Jud

ges; BUNNING, D istrict Judge. *

_________________ COUNSEL

ARGUED: David L

. En gler, B oardman , Ohio, for Appella nt. John D. Sammon, ASSISTANT UNI TED S TATE S 2 United States v. Monus No. 02-4102

ATTORNEY, Cleveland, Ohio, fo r Ap pellee. ON BRI EF: David L. Engler, B oardman, Ohio, Martin E. Yavor cik, Poland, Ohio, for

Appellan t. John D. Sammon, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________ SIL ER, Circ u it Judge. After Michael I. Monus wa s convicted of vario us financ ial crime s, this cou rt upheld his convictionbu t r em an de d f or re se nt en ci ng . S ub se qu en tl y, Monus mo ve d f

or : ( 1) a n ew tr ia l o n t he ba si s o f n ew lydiscovered

evidence, (2) a sentence reduction pursuant to 18 U.S.C. § 3582(c ), and (3 ) a writ of cora m nobis. The district court de te rm in ed th at th e m ot io n f or a n ew tr ia l w as un ti me ly, that the motion f

or sente nce red uction wa s without me

rit because the newsentencing guideline at issue was substantive and no t c la ri fyi ng (and thus not retroactive), and that the
coram nobis motion

was inap propria te beca use Monus i s still is federal custody . He appeals from the districtcourt ’s rul ings on these t hree mot ions. We af

firm.

BACKGROUND

In1995 Monus was conv

icted on a ll countsof a 109-count indictmentthat charged him with an assortm ent of financial crimes, including bank, wire, and mail fra ud. On app eal, this court affirme d his conviction but vacated his sentence and remanded for res entenci

ng for t he distric t c ourt t o explain how it calcul ated the

amount o f loss and

to respon

d to Monus’s objections to the Presentence Report. United States

v. Monus, 128 F.3d

376 (6th Cir. 1997). This court rendered it s decision

on Octobe

r 21,1997 , and the mandate a ffir min g Monus’s conviction issued on October 24, 1997.No. 02-4102 United States v. Monus 3

Onremand, the part

ies struck a deal. In consideration for stipulating to a lower loss figure ($ 5-10 million, as opposed to the $80 million figure on which the previous sentencewas based) that had t

he effe ct of re ducing

Monus’s ne

t “loss”
en hancement

four levels (from 18 to 14), Monus agreed t o waive all rightsto appea

l, includin g all rig hts under 28 U.S.C. § 2255. The order resentencing Monus in accor

dance w ith these terms was entered on March 1, 1999.

OnMarch 3, 2000, Monu s filed two motions: a motion to correct a clerical error and a mot ion for a reduction of sentence under Rule 35(b). The district court granted the motion to correct the clerical error but denied the Rule 35(b) motion. Mo nu s again appealed. While the case wa s before this court on Monus’s appeal of the district court’s denial of his Rule 35(b) motion, however, on March 12, 2001, Monus filed a motion for a new trial based on newly -discovered evidence. The d istr ict court stayed c onsideration of the motion p end ing a ruling by this court on Monus’s appeal of his Rule 35(b) motion.

This court affirm ed the district court’s denial of Monus’s Rule 3 5(b) motion on April 12, 2002. Monus then filed th e other two motions

that are the subje ct of this appeal: the motion for a sentenc e reduction pursu ant to 18 U .S.C. § 3582(c) and the motion for a wr it of coram nobis. The districtcourt considere d the thre e pendin g mot ions together and denied them all. Monus appealed.

STANDARDOF REVIEW

“O rd in ar il y, [an appellate cour t] reviews the denial of a motion for new trial on the basis of newly discovered evidence for abuse of discre tion. [This case,] however, present s [a] question [] of law . . . . Accor dingly , [the cour

t] conducts a de novo review of the district court’s conc lusion[] of law” that the motion was not timely filed. United States v. Pelullo, 14 F.3d 881, 886 (3d Cir. 1999) (citation o mitt ed). The districtcourt’s determination that the relevant sentencing 4 United States v. Monus No. 02-4102

1 The Rule was f

urther amended eff

ecti ve Dece mb er 1, 2002. The Rule d id not chang e in s ubstance , however , and t he same “3 y ears af

ter the verdict

or find ing of gu ilty” time-l imitati on still applies. The relevant language in t

he post -2002 Rule 3 3 ap pea rs in sub section (b)(1 ). (The pre200 2 rule w as no t divide d into su bsec tions.). gui de line revision

was substa

ntive and not clar ify ing is al so reviewed de novo. United States v. Hicks, 4 F.3d 1358, 1360 (6th Cir. 1993). Likewise, “[a] district court’s determination of legal i ssues in c oram nobi s p r oceedings is reviewed de novo.” United States v. Johnson, 237 F.3d 751, 754 (6th Cir. 2001).

DISCUSSION

Motion for a New Trial

Inconsider

ing the t imeliness of Monus’s motion for

a new trial, the following dates are relevant: (1) May 25, 19 9 5, the date on which t

he jury render ed its gu

ilty verdict ; (2) October 24, 1997, the date on which t h e mandate issued fromthis court af

firming Monus’s c onviction ; (3) March 1, 1999, the date

on which t

he amend ed judg ment was e

nte re d following Monus’s resentencing; and (4) Marc h12, 2001, the date on which Monus filed his motion for a new trial.

As to this issu e, a preliminary que stion arises: w hic h versionof Rule 33 should apply, the pre-1998 ve rsion, which requires a motion for a new tr ial based on newly disc overed evidence to be made “within two ye ars after final judgment ,”
or the post-1998 version, which requires that the motion be made “within 3 y

ears after the verdict or finding of guilty ”? 1 (Emphasi s added). If the post-19 98 version applies, even Mo nu s c on ce de s t ha t h is mo ti on wa s u nt im el y.
“At the time the amendments to Rule 33 were promulgated, the Supreme C ourt spec ified tha t the amen

dments wou

ld apply to all pending criminal cases ‘insof ar as just and practicabl e.’” United States v. Ristovski, 312 F.3d 206, 212No. 02-4102 United States v. Monus 5

(6th Cir. 2002) (citing Supreme Court Order 98-17, April 24, 1998). Though we have n ever addressed this question di re ct ly, this court has strongly sug gested that

a case such

as Monus’s - a situat ion where “if amended Rule 33 were applied . . . , [the d efenda nt’s] three- year perio d for fi ling a motion for new trial . . . would have expired before the amendme nts to Rule 33 e

ven went into effe ct” - would be one where apply

ing the a

mended r

ule would be unjust and impracticable. Id. We therefore decline to apply the amended rule.

Even under the old Rule 33, however, the overwhelming weight of authority sugges ts tha t Monus’s motion was untimely still. This is because those circuits that have construed “final judgment” in this context - the Sixth not yet amongthem - have held that when a defenda nt’s conviction is affirmed but sentence vacated, the two-y ear time limit runs from the date of

the affirmance of the conviction rather tha n fromthe date o f res entencing. See, e.g., United States v. White, 557 F.2d 1 249 (8th Cir . 1977); Howell v. Unite d States, 172 F.2d 213, 215-16 (4thCir. 1949) ; see also United States v. Erwin, 277 F.3d 727 , 733 (5th Cir. 2001) (dating “final judgmen

t” from ti me of void

judgmen t); United States

v. Lussier, 219 F.3d 217, 219-20 (2d Cir. 2000) (same). Thus,
cons truing “final ju

dgment” this way

, the two-ye ar time period for Monus would have begun to run on Oc tob er 24, 1997, the date o n whic h this cour t issued its

mandate affirminghis conviction, and f ar more than two y

ears pr ior to Monus’s March 12, 2001 motion for new trial.

Fi na ll y, Monus argues that because the new evidence at issue here is alleged

to be Brady evidence, the time-limitation for filing his motion should be relaxed. See generally Brady

v

. Maryland, 373 U.S. 83 , 87 (1963 ) (holdin g th at “th e suppressionby the prosec ution of evidence favor ab le to an accused upon request violates due proce ss”). This line of argument was not a

dvance d below, however , and thus t his court need not consider

it now. See Say lor v. Unit ed States

, 315 F.3d 664, 669 (6th Cir. 2003). 6 United States v. Monus No. 02-4102

2 [I]n the case of a defendant who has been sentenc ed to

a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentenci ng Comm ission .
. . , upon motion of the defendant or the Direct or of th e Bureau of Pri sons, or on it s own motion, th e cour t may reduc e th e te rm of impr isonm ent, after consi dering the facto rs set forth in section 3553(a). 18 U .S.C. § 358 2(c) (2).

3 After the 1 995 se nten cing of Monus but bef ore the 2001 amend ments, the “ aff

ect[i ng] a f

inanci al i nsti tut ion” sec tion wa s moved to § 2F 1. 1( b) (8 )( B) . ( The lan guage st ayed t he sa me.) . The 2001

ame ndm ents eli minat ed § 2F1.1(b)(8)(B) and moved t he revi sed sect ion to its pre sent loc ation, § 2B 1.1( b)(1 2)(A ). Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)

Monus’s motion for sentence reduction under 18 U. S.C. § 3582(c) 2 relies on

the Nove mber 2001 amendme

nts to the guideli nes, which i ncluded an overhaul of the financial crimes guideli nes. In 1995, when Monus was sentence d, he received
a four-level enh anc ement because his offense “aff ected a financial institution and [he] derived more than $1,000,000 in grossreceipts from the offense.” USSG § 2B1.1(b) (6) (B) (1995). This languag e w as altered as part of the November 2001 amendments, however. The post-2001 language, found in§ 2B1.1(b)(12) ( A), provides that, “[i]f the defendant derived more t han $1 ,000, 000 i n gr oss receipts from one or
more financial institution s as a re sult of the of fense, i ncreas e by 2 levels.” USSG § 2B1.1( b)(12)(A) (2002). 3

While Monus concedes that the 2001 amendmen ts “as a whole” are substantive in nature, he advances what he calls a “specif ic argume nt” that the 2001 ame

ndment clarified what it means to “affect” a financial institution such that the district court erred in deny

ing ret roacti ve application. Of course, clarifications of the g

uideli ne s have retroactive application while substantive chang es do not. United States v. Willia ms, 940 F.2d 176 (6th Cir. 1991). He places particular re liance onNo. 02-4102 United States v. Monus 7

the explanatory

note to the 2001 amendment, which in part provides that [t]he enhancement also wa s modified to address issues about what it me ans to “affect” a financial institution and how to a pply the enhanc ement to a case in which ther e are more than one financial institution inv olved. Ac co rd in gl y, the revised provision focuses on whether the defenda

nts deriv ed more t

han $1,00 0,000 in g

ross receipts from one or more financi al instituti ons as a r esult of the offense. USSG App. C, Amendment 617, at 179.

Giventhe spec ificity

of the que st ion pr esented, it is no surprise that this c ourt has n

ot yet had oc casion to

pass on thi s issue. However, the Seventh Circuit did in Unit ed States v. Hartz, 296 F.3d 595 (7th Cir. 2002). It squarely rejected the very argument advanced by

Monus in the instan t appeal . It looked to three factor s i n determ ining if USSG § 2B1.1(b)(12)(A) is properly considered a

clarification or

a substantive cha nge: “(1) how the Sentencing Commission ch aracterized

the amendment; (2) whether the amendm en t changes the language of the gui deline its elf or change s only the commentary f

or the guideline; and (3) wh e ther the amendment

resolve s an ambig

uity inthe original wording of the guideline.” Id. at 599 (ci tat ions omitted). Noting the absence of any indication that the Commission intended the amendment

to be clarify

ing, the fact that the amendment changed the plain language of the g uideline itself

, and the unambig uity of the original version, it found the amendment substantive. Id.

The opinion in Hartz

is well-reasoned and persuasive. We theref ore ado pt it s reaso ning. 8 United States v. Monus No. 02-4102

4 Mo nus styl ed hi s mo ti on as an “Appl ication f or Rel ief

fr om Judgment or M otion for Se ntence Red uction as if Un der R ule 35 (b) o r in the Nature of a W rit of Coram Nob is.” The district court did not add ress the Rule 3 5(b ) part o f this motio n, in all likelihoo d be cause it had al ready ruled on the iss ue in an order dated March 30, 2000. I n any eve nt, such

a motion i s wholl y wit

hout meri t becaus e, as the dis tri ct c ourt expl aine d, the p lain lan guage of t he rul e makes cl ear th at onl y the government can bring a Rule 35 (b) “substantial assist an ce” m otion . The gove rnme nt’s decis ion is not t o be questioned unless the defendant can make a sub stantia l threshold showing of an unconst ituti onal motive for refus ing to make the mo tion, s ee United States v. Ba gno li, 7 F.3d 90, 92 (6th Cir. 199 3), an d no such sh owing was m ade here.

Motion for W

rit of Error C

oram Nobis

“Aprisoner in custody is barr ed from seeking a writ of
error coram nobis.” United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001). This is the case even if, as here, § 2255 relief is no longer available. Id. Becau se Monus remains in custody , he is bar red from seeking

the writ. 4

AFFIRMED

.