United States v. Ortiz Fernandez
690 F. App'x 628
10th Cir.2017Background
- Defendant Juan Manuel Ortiz Fernandez pled guilty to: one count of possession with intent to distribute >500 grams methamphetamine and four counts of unlawful use of a communication facility.
- District court sentenced him to the 120-month statutory mandatory minimum for the drug count and concurrent 48-month terms for the communication counts.
- Defendant filed a pro se motion under 18 U.S.C. § 3582(c)(2) seeking a sentence reduction based on post-sentencing guideline changes.
- The district court denied the § 3582(c)(2) motion on November 18, 2016, reasoning the defendant was sentenced to the mandatory statutory minimum, not a guideline range.
- Defendant’s notice of appeal was postmarked January 17, 2017 and received January 24, 2017—after the 14-day deadline; no extension under Fed. R. App. P. 4(b)(4) was sought and no explanation for tardiness was offered.
- The government objected to the late appeal; the Tenth Circuit dismissed the appeal and affirmed the denial of relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal from denial of § 3582(c)(2) motion | N/A (defendant filed late) | Ortiz implicitly argues appeal should be considered despite lateness | Appeal is untimely; must be dismissed because government properly invoked Rule 4(b) time bar |
| Applicability of § 3582(c)(2) relief | N/A | Ortiz sought sentence reduction under § 3582(c)(2) due to guideline changes | Even if timely, § 3582(c)(2) relief unavailable because sentence "based on" statutory mandatory minimum, not Guidelines |
| Requirement to seek extension under Rule 4(b)(4) | N/A | Ortiz did not request extension or explain delay | Failure to seek extension or explain delay supports dismissal when government objects |
| Effect of concurrent sentences on § 3582(c)(2) relief | N/A | Ortiz’s motion sought reduction of concurrent sentences as part of overall reduction | Court noted concurrent nature but held statutory minimum basis precludes § 3582(c)(2) relief |
Key Cases Cited
- United States v. Espinosa-Talamantes, 319 F.3d 1245 (10th Cir. 2003) (treats a § 3582(c)(2) motion as a continuation of the criminal proceeding)
- United States v. Randall, 666 F.3d 1238 (10th Cir. 2011) (14-day appeal period for criminal notices of appeal and Rule 4(b) enforcement)
- United States v. Garduno, 506 F.3d 1287 (10th Cir. 2007) (government’s timely objection requires dismissal of untimely criminal appeal)
- United States v. White, 765 F.3d 1240 (10th Cir. 2014) (§ 3582(c)(2) relief is available only when the original sentence was based on a guideline range subsequently lowered)