Victor LOMMEN, natural father of Joshua Lommen, a minor; and Joshua Lommen, a minor, by his natural father Victor Lommen, Appellants, v. John Francis MCINTYRE, Appellee.
No. 03-2313
United States Court of Appeals, Sixth Circuit.
March 10, 2005.
397 F.3d 655
Before MARTIN, GILMAN, and FRIEDMAN, Circuit Judges.*
David N. Smokler, Huntington Woods, MI, for Appellants. * The Honorable Daniel M. Friedman, Senior United States Circuit Judge with the Court of Appeals for the Federal Circuit, sitting by designation.
In contrast to the enhancement for gun possession, Story did not object to the district court‘s determination of drug quantity either in the presentence report or before the district court. Accordingly, we review whether the district court committed plain error when he determined the drug quantity for sentencing. United States v. Oliver, 397 F.3d 369 (6th Cir. 2005) at *6. In order to show plain error, Story must satisfy the following criteria: “(1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant‘s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings.” United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
We conclude that the district court committed plain error. See Oliver, at *6 (finding plain error for a Sixth Amendment violation pursuant to Booker even though defendant raised his objection for the first time on appeal). Under the first prong of plain error analysis, the district court erred because it sentenced Story under mandatory Guidelines to a greater drug quantity than what was apparent from the jury‘s verdict. Second, the error was plain, because though “the law at the time of trial was settled and clearly contrary to the law at the time of appeal-it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson, 520 U.S. at 468, 117 S.Ct. 1544. Third, we find that the error affected Story‘s substantial rights. This normally means that the error “must have affected the outcome of the district court proceedings.” United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). It is clear that the district court‘s computation of drug quantity, which increased the amount from “more than 50 grams” to 1.67 kilograms, affected sentencing by increasing the Guidelines range from 210 to 262 months to 360 months to life. Finally, this error affected the fairness, integrity or public reputation of the judicial proceedings, Johnson, 520 U.S. at 467, 117 S.Ct. 1544, because it implicated a fundamental constitutional right.
Conclusion
The conviction is affirmed, but the sentence is vacated and remanded for further proceedings pursuant to Justice Breyer‘s majority opinion in Booker.
GILMAN, Circuit Judge.
Victor Lommen seeks a federal declaratory judgment that he is the “natural father” of Joshua McIntyre-Lommen. His complaint was dismissed after the district court concluded that it lacked subject matter jurisdiction. Because Lommen‘s notice of appeal from the district court‘s dismissal was not timely filed, however, we reach only the limited question of whether the district court properly denied his motion for reconsideration. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
John and Kim McIntyre were married in Michigan in 1983. Kim began an extramarital relationship in 1991 with Victor Lommen. While still married and living with her husband, Kim gave birth to a son, Joshua, in December of 1991. The McIntyres eventually divorced and Kim was remarried to Lommen. Lommen then sought custody of Joshua, who Lommen maintains is his son.
Following many years of litigation in the Michigan and Illinois state courts regarding the paternity and custody of Joshua, Victor Lommen filed the present action in
Shortly after the complaint was filed, the district court issued an order directing Lommen to show cause why the case should not be dismissed for lack of subject matter jurisdiction. The order noted that, on its face, “[t]he Complaint alleges traditional state law issues and does not invoke the Court‘s diversity jurisdiction.” Lommen responded, arguing that the case was within the district court‘s federal question jurisdiction because he was seeking to “vindicate [his] constitutional right to what has been called the right of parental autonomy or the right to family integrity under the United States Constitution.” Observing that Lommen had “responded by citing several United States Supreme Court cases finding a constitutional right of parental autonomy,” the district court concluded that Lommen had properly invoked the court‘s federal question jurisdiction.
Two days later, however, the district court revisited its earlier jurisdictional finding, stating that “[o]n further reflection, the Court reconsiders that decision sua sponte, and finds that there is no constitutional right to have the issue of paternity determined by a federal court.” The district court then dismissed Lommen‘s complaint for lack of subject matter jurisdiction. This order was issued on July 10, 2003.
On August 19, 2003, Lommen filed a “Motion for Reconsideration,” in which he argued essentially the same points that he had raised in his earlier response to the court‘s show-cause order. Finding that the motion was filed “well after” the 10-day period allowed under
Both parties submitted briefs to this court addressing the merits of whether federal question jurisdiction exists when a party asserts a “federal constitutional right of parental autonomy or family integrity.” McIntyre also filed a motion to dismiss for lack of jurisdiction, alleging that Lommen‘s appeal of the underlying matter was untimely. The motion to dismiss was referred to a panel of this court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. That panel, composed of Judges Martin, Sutton, and Quist, issued an order on June 14, 2004, concluding that Lommen‘s “notice of appeal from the district court‘s judgment was not timely.” The panel then referred the motion to us for consideration of whether “this court nevertheless may have jurisdiction over the limited issue of whether the motion for reconsideration ... was properly denied.”
II. ANALYSIS
Lommen did not file his notice of appeal until 71 days after the district court‘s dismissal of his case for lack of subject matter jurisdiction. The Federal Rules of Appellate Procedure require litigants in civil cases to file a notice of appeal “with the district clerk within 30 days after the judgment or order appealed from is entered.”
In any event, Lommen is essentially seeking a federal declaration that he is Joshua‘s father, and matters of paternity are for the state courts. See Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1215 (6th Cir.1981) (“Even when brought under the guise of a federal question action, a suit whose substance is domestic relations generally will not be entertained in a federal court.“). We therefore dismiss Lommen‘s appeal insofar as it challenges the merits of the district court‘s dismissal of his complaint for lack of jurisdiction.
Lommen, however, contends that we may hear his appeal because he filed a timely notice after the district court‘s denial of his motion for reconsideration. But McIntyre maintains that we lack jurisdiction in the present case because Lommen‘s appeal from the district court‘s denial of a motion for reconsideration “is an appeal from a normally nonappealable order.” See Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir.1976); see also Md. Tuna Corp. v. MS Benares, 429 F.2d 307, 316 (2d Cir.1970) (stating that denials of motions for reconsideration “do no more than deny a motion for reargument, and such orders are generally not appealable“). The cases cited by McIntyre, however, predate the Supreme Court‘s clear pronouncement in Stone v. INS, 514 U.S. 386, 401, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), that “[t]he denial of the motion [for reconsideration] is appealable as a separate final order.” Accordingly, this court has held that appeals from orders denying motions for reconsideration are within our appellate jurisdiction. See Hood v. Hood, 59 F.3d 40, 42 (6th Cir.1995).
In reviewing Lommen‘s appeal from the district court‘s denial of his motion for reconsideration, we are mindful that the scope of our appellate review is quite narrow. Id. (“On an appeal from the denial of a motion [for reconsideration and] for relief from judgment under
The district court dismissed Lommen‘s complaint for lack of subject matter jurisdiction on July 10, 2003. Lommen filed his motion for reconsideration 40 days later, on August 19, 2003. Because a motion for reconsideration brought pursuant to
When a motion for reconsideration is filed after the 10-day time limitation im-
“As a prerequisite to relief under Rule 60(b), a party must establish that the facts of its case are within one of the enumerated reasons contained in Rule 60(b) that warrant relief from judgment.” Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir.1993). Because Lommen‘s motion does not come within the first five grounds specified in the rule, it presumably falls under subdivision (6), which permits a district court to grant a motion for relief from judgment for “any other reason justifying relief from the operation of the judgment.” But a motion under Rule 60(b)(6) may be granted “only in exceptional or extraordinary circumstances.” Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989).
Lommen‘s motion for reconsideration does nothing more than restate the arguments contained in his earlier response to the court‘s show cause order. Although “this approach may be appropriate for an appeal on the merits ... it fails to establish that the facts of [Lommen‘s] case are within one of the enumerated reasons contained in Rule 60(b).” Johnson v. Unknown Dellatifa, 357 F.3d 539, 543 (6th Cir.2004). Because Lommen‘s motion for reconsideration presented nothing new, we conclude that the district court did not abuse its discretion in denying his motion. See id. at 544 (affirming district court‘s denial of a rule 60(b)(6) motion where the “motion merely rephrases the allegations contained in the complaint and presents no new arguments“).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.