United States v. Erskine Hartwell

apportionment, the district court should of Insurance Defen- in favor judgment Frenches’ claims respect appropriate judgment to the an in favor of dants with enter declaratory and breach judgment for respect the Frenches with to their declara- indemnify to duty to the ex- the express claim tory claim and their for coverage under those claims seek tent duty indemnify to for an breach of to correct the de- CGL Policies 1986 ISO apportioned amount to the equal amount on the Frenches’ EIFS exterior fective the other- remedying damage for to (2) home; grant vacate the district walls wise nondefective structure and judgment in favor of the In- summary the Frenches’ home. respect Defendants with surance declaratory judgment claims Frenches’ III. duty to express indemni- breach stated, affirm in coverage For the reasons we fy claims seek to the extent those damage to otherwise for fur- remedy part, part, vacate in and remand walls of the structure and nondefective opin- proceedings ther consistent with (3) home; for fur- remand Frenches’ ion. this opin- consistent with proceedings

ther PART, IN AFFIRMED IN VACATED ion. PART, AND REMANDED. B. court did not

Because the district three the Insurance Defendants’

address appears each arguments

alternative underlying dis at least one factual

involve rule

pute, general adhere we appellate court does consider federal America, UNITED STATES of passed Singleton upon issue not below. Plaintiff-Appellee, Wulff, v. S.Ct. (1976) (“It general is the course, rule, appellate that a federal HARTWELL, Defendant- Erskine passed court not consider an issue does Appellant. below.”). remand, upon On district the three alterna court is free consider No. 04-6214. by the Insurance arguments

tive raised Appeals, United States Court of present and in the Defendants both below Fourth Circuit. arguments appeal, pass upon. did previously Dec. Argued 2005. Defendants’ If none of Insurance May Decided coverage to arguments defeat alternative remedy damage to the otherwise non- structure and walls

defective home, court should

Frenches’ apportion dam- proceedings

conduct

ages due the Frenches between costs EIFS exterior and correct defective damage to the remedy

the costs to and walls nondefective structure

otherwise Following such

of the Frenches’ home. gov- efforts to Sampson, As Hartwell’s assist Craig Weston ARGUED: later, David Richmond, Virginia, Appellant. ongoing year were still ernment At- Novak, Assistant United States John government filed a motion under Fed- Attor- of The United States torney, Office for a eral Rule of Criminal Procedure Richmond, Appellee. for Virginia, ney, on August of sentence reduction Resnick, Washing- L. ON BRIEF: Marc by time one-year imposed to toll the limit D.C., McNulty, Paul ton, Appellant. for J. later, A the year-and-a-half rule. Whisler, Attorney, Brian L. United States at the government filed memorandum Rich- Attorney, Assistant court, recommend- direction mond, Virginia, Appellee. for reduced ing that Hartwell’s sentence be imprisonment years’ impris- life to 38 NIEMEYER, WILLIAMS, and Before despite government’s concerns onment SHEDD, Judges. Circuit cooperation. over Hartwell’s Several opinion. Judge by published Affirmed later, however, of Hart- months court, opinion for the Niemeyer wrote the ongoing lies and his lack of past well’s and joined to Parts Judge in as Williams disclosure, filed a mo- government full V, I, IV, joined II, Judge and Shedd and motion tion to withdraw its for a reduction I, III, Judge as Parts and V. Williams filed for a motion of sentence. in concurring opinion wrote an evidentiary hearing to determine Judge concurring judgment. Shedd government’s motion consti- whether concurring opinion. wrote a agreement. plea a breach of the tuted OPINION January By order dated granted court NIEMEYER, Judge: Circuit motion to withdraw its guilty, pursu- pleaded Erskine Hartwell Hart- of sentence and denied for reduction April plea agreement ant to a dated evidentiary hearing. motion for an well’s criminal information to a one-count him result- charging with murder-for-hire order, Hartwell appeal from that On death, of 18 U.S.C. in violation ing had that the district court never contends 1958(a), im- § life punishable a crime in this case be- plea prisonment or death. Under on an government proceeded cause not to government agreed agreement, of an for information instead indictment consider, “in penalty death seek the also con- punishable by death. He crime discretion,” at a filing motion its sole in its plea agreement, that the both tends the sentence time for reduction later par- original form and as modified minimum, Hart- statutory below during cooperation, of his ties the course fully, completely, agreed cooperate well government authorize the with- did not in in- truthfully government with the for a reduction of sen- draw its motion activity. If Hartwell vestigating contends that the dis- Finally, he tence. agree- obligations, ful-fill his did not denying its discretion trict abused could government provided ment evidentiary hearing on whether him an any or all of its obli- “seek release from plea agreement. breached gations” agreement. under the follow, we conclude For the reasons Hartwell to The district court sentenced Hart- jurisdiction- have to hear that we imprisonment, and life affirm the district appeal and Au- well’s was entered conviction January 2004 order. gust I lease from or all obligations un- der this agreement.” participation For his in a conspiracy to kill a witness Westmore- agreed: County, land Virginia, which resulted in — not to seek penalty; the death Pereira, the death of Jaime who was not — target, intended pleaded not to prosecute the defendant fur- guilty to a criminal information charging ther in the Eastern District of Virginia him with aiding and abetting murder for “specific conduct described hire, 1958(a). in violation of facts”; information or statement of That provides statute that when death re- — to recommend to the court that the sults, the defendant punished is to be sentence in this case run concurrently either imprisonment life or death. To any with sentence that Hartwell re- penalty avoid the death and to receive the ceived for charged crimes in the District possibility of an additional sentence reduc- Maryland; tion, negotiated Hartwell a plea agreement — that it reserved “its government, option with the to in which seek agreed he “full, any provide departure complete applicable and truthful sen- co- operation” with the tencing guidelines, pursuant investi- to Section gation of activity. criminal particu- More 5K of the Sentencing Guidelines and larly, agreed: Hartwell Statements, Policy or Rule of the — to waive indictment Federal plead and Rules of guilty Procedure, Criminal if

to a one-count information; criminal discretion, its sole the United States — that the determines that departure court had such ap- and authority propriate.” to impose any sentence within statutory maximum; Hartwell was sentenced to life imprison- — that he could not withdraw his ment $5,320 and pay ordered to in restitu- guilty plea based upon the sentence im- tion to family Pereira, of Jaime and posed; August entered on — to waive right his to appeal “any Hartwell did not appeal judgment. sentence within the maximum provided provided Hartwell statute(s) information (or and testi- of conviction mony in other criminal investigations manner in which that and sentence was de- termined) trials. government, however, The grounds became set forth in Title concerned United about completeness States Code section any 3742 or on ground whatever”; truthfulness of his cooperation following — his testimony cooperate during the trial fully, completely, James McGill, Jr., truthfully with the government District of pro- Maryland. vide it all information that he told two FBI agents knew re- that he had garding any activity;-to testify committed perjury at urging of an truthfully and completely any at grand Assistant United Attorney. States He juries, trials, or other proceedings; then told the Assistant United States At- — to be reasonably torney available for that he de- had lied to agents the FBI briefing pre-trial conferences as the angry he was at some of the law government might require; enforcement officers involved in the case — that if he fulfill failed “to and that he completely had not in perjured fact him- all obligations under this self. agree- government The also learned that ment, the United States may seek re- Hartwell withheld information from DEA on March 2003. In government in which he was did homicides agents about detailing and value addition nature involved. cooperation, government concerns, gov- result of these As a problems coopera- outlined his also counsel to Hartwell’s ernment sent letter tion, including The the McGill incident. con- stating, have January “[W]e had government also stated his Mr. Hartwell violated cluded family. paid restitution Pereira’s plea agree- responsibilities motion, footnote to however, stated, ment[ ].” stated: accepted responsi- that because Hartwell complexities

bility and because The Government defendant’s considers jurisdic- in three different cooperating anticipated testimony against truthful tions, Mr. Hart- “continue allow would principal as the for the fil- [B.N.] basis merit a cooperate in his efforts to well to If, reason, ing of this motion. If Hartwell reduction motion.” provide defendant fails to truthful testi- specified condi- agreed to satisfied mony prosecution, the during the [B.N.] tions, would “continue the position Government will take him for a sentence reduction consider engaged defendant has in a material added). time” appropriate the plea agreement breach of his and his successfully included These conditions provide commitment to assis- substantial examination; pay- completing polygraph the tance to Government. May obligation full ing his restitution government The concluded motion its 31, 2001; to his false state- stipulating recommending that Hartwell’s sentence and co- prosecution; in the McGill ments imprisonment from to 38 reduced life fully truthfully gov- operating and with the years’ imprisonment. and counsel ernment. Both Hartwell his later, A few months Hart- June 14, 2001, agree- letter signed the on March evidentiary filed motion for an hear- well ing to conditions. alleging government had ing, that August while Hartwell’s On agreement. He at- plea breached ongoing, government was assistance stating, tached an affidavit “On or about a motion for a reduction of Hartwell’s filed Feb[r]uary Nova[k] 2000 AUSA David Rule of sentence Federal Criminal an and Virginia from entered 35(b). that motion Procedure The stated previous and counsel promised [defendant] “in the defendant was the midst since receiving Purpura Esq, that after William it filed to toll cooperating,” was going was to reduce a life sentence he imposed by time limitation Rule one-year on a years 18 sentence [defendant’s] 35(b). government asked court to The 35(b) motion.” ruling on motion until the defen- delay thereupon a mo- responsibilities. government dant had fulfilled The filed delay Hartwell consented motion. to withdraw its Rule “if fulfill that fails to agreed the defendant that af- government stated Hartwell’s Government, the responsibilities to the that no had ever fidavit was false and one this motion Government withdraw specific Hartwell promised objection by the defendant.” reduc- that he would receive Rule of this act tion at all. Because “latest later, year-and-a-half Approximately a untruthfulness,” longer no government court, ordered the sponte, sua that Hartwell deserved a sentence in believed its memorandum file 35(b) motion, its reduction. support of Rule

712 promptly appeal filed a statement such an a claim essentially that affidavit, to strike his own admit- imposed sentence was violation of ting Novak did not make the that AUSA Pridgen, law. See 64 F.3d at 150. promises Hartwell stated his affida- response to Hartwell’s invocation of 28 vit. § 1291 (authorizing U.S.C. appeals courts”), “all final decisions district gov- on the

The court heard government argues that Hartwell motion to withdraw its ernment’s days failed to file his within ten 35(b) motion, 14, 2004, January it on case, the judgment in this which was en- granted motion and de- August 18, tered nied motion for an evidentiary Hartwell, hearing. United States v. 302 Generally, 28 U.S.C. 1291 that (E.D.Va.2004). F.Supp.2d gives Appeals jurisdiction the Courts of (1) appeals from “all final appeal, contending filed decisions of the subject-mat- district court district A lacked courts.” in criminal ter to convict and sentence him case after becomes final conviction and charged by because he was an information imposition of sentence. United States v. indictment; (2) district (4th Bundy, 392 F.3d n. Cir. in permitting erred 2004) States, (citing Flanagan v. United 35(b) motion; (3) withdraw U.S. S.Ct. court abused its discretion (1984)). L.Ed.2d 288 Other orders in denying him an evidentiary hearing on criminal cases are final ap- and therefore whether the breached the pealable when is nothing there further to agreement. See done. v. United Catlin 631, U.S. 89 L.Ed. 911 II (1945). Any appeal of a criminal outset, theAt we the gov address or other final criminal order must be filed may ernment’s contention that Hartwell days entry within ten after “the either appeal not grant court’s order the judgment being or the appeal order 35(b) ing its motion to withdraw Rule 4(b)(1)(A)(i). ed.” See Fed. P. RApp. But motion, citing Pridgen, United States v. 64 parties to a may appeal criminal case oth (4th Cir.1995), F.3d 147 and that therefore sentences, final erwise even after the time appeal. we dismiss must In appealing elapsed, for in the limited we Pridgen, appeals rulings held that provided by circumstances 18 U.S.C. 35(b) Rule motions are governed 18 § Pridgen, 3742. See also F.3d 64 at 148- § 28 § U.S.C. U.S.C. 49. Section 3742 provides relevant that district court’s exercise discre may defendant “[a] file a notice of denying tion in appeal in the district court for of an review for a sentence reduction fulfill does not otherwise final sentence the sentence if condition a defendant’s appeal under was imposed in violation law.” 18 section, long so as the district court 3742(a)(1) added). § U.S.C. did authority. not misconstrue its See Virtually every circuit to have con 149; 64 at Pridgen, F.3d 3742(a)(1) question § sidered the has ruled that a crim (authorizing if appeal sen- law). inal imposed may tence defendant 28 was violation of invoke U.S.C. did, however, § We find that 1291 to circumvent the conditions im defendant posed § could appeal district refusal 18 court’s U.S.C. 3742 for appealing conduct an evidentiary hearing because final otherwise sentences. See United

713 (9th Doe, so permit Cir. as to F.3d 853 v. 374 States Moran, motion, F.3d thus 2004); v. 325 to withdraw its earlier United States (6th Cir.2003); reduction, v. chal- precluding United States sentence he is 792 (7th McDowell, 974, 977 Cir. lenging legal 117 F.3d foundation of his sen- McMillan, 1997); 106 v. v. 62 Khoury, United States tence. See United States (10th (9th Cir.1997); Cir.1995) 324 n. United (reviewing F.3d F.3d 1138 (2d Cir.1996); Doe, 67, 68 v. F.3d § States of a mo- government’s withdrawal 5K1.1 Arishi, 54 F.3d 598- assistance); States v. United for substantial v. Bischel (9th Cir.1995); (7th Cir.1994) v. but see United States F.3d 259 United Cir.1993). (1st McAndrews, 12 F.3d 273 (reviewing government’s of a withdrawal Pridgen, explicitly rejected motion); In we v. cf. (4th Cir.2005) holding. Pridgen, Barnette, (re- 64 F.3d McAndrews F.3d viewing departure extent § under a U.S.S.G. 5K1.1 motion where appealing if an other- impermissibly defendant claimed court sentence, be final must wise possibility departure considered future 3742(a) all, and by § or not at authorized 35(b)); v. United States Wil- section, alleging he rely on that must be (7th (review- son, Cir.2004) 390 F.3d 1003 im- final was that his otherwise sentence ing government’s failure to file a Rule may law. make violation of He posed 35(b) motion); Buchanan, States United ruling on a Rule appealing that claim (6th Cir.2000) (same). And a 213 F.3d 302 35(b) motion. of an challenge legal foundation that, gov- Hartwell contends appealed final otherwise sentence to with- legally was not entitled ernment 3742(a). § under U.S.C. 35(b) motion, the district draw its Rule addition, the extent that Hartwell reduc- court failed to consider sentence claims breached required and therefore that tion as challenging plea agreement, he is illegal, satisfying thus sentence the district court’s directly, but 3742(a) condition of his sentence require to com- refusal of law. But he also imposed violation argu- Such an ply agreement. with that failed contends when the essentially request specific a for a ment to seek a sentence reduction under agreement. plea of the performance 35(b), agreement. Ac- plea breached granted gov- the district court when that requests he essence cordingly, also its rule motion to withdraw ernment’s specifically enforce the district court 35(b) motion, re- it entered final order Hart- Finally, as written. plea jecting specific performance district court did well contends that claim, is appealable under 28 U.S.C. con- have Alexander, v. § 1291. See United States case, a Rule including the entire sider (2d Cir.1989); v. F.2d 91 United States 869 35(b) conten- motion or its withdrawal'—-a 04-30491, Fed.Appx. 145 593 Worley, No. in Part that we and address describe Wilson, (9th Cir.2005); F.3d 1003 390 III, below. cf. ju- (reviewing, without citation for court’s case, unique In the circumstances of this risdiction, gov- that contention defendant’s authority have to hear we conclude that we “carry[ failed out its ] ernment appeal either 18 U.S.C. bargain”). [plea] 3742(a) 1291(a). § or To that Finally, because Hartwell contends the dis- that Hartwell contends that extent subject- district court did have construing plea trict court erred 714 jurisdiction including or consider Rule motions to correct reduce the withdrawal, sentence. that

motion or its we conclude authority appeal we have hear this The contends that Hart- jurisdiction. determine district court’s conviction final well’s and sentence became Carey, v. F.3d 509 120 that, date, August 2000 this late Cf (4th Cir.1997) (affirming the district may challenge jurisdic holding late-filed Rule by appeal tion of conviction or sentence jurisdiction). beyond appeal long motion was because the time for passed “jurisdic and such limits time are bottom, any grounds At for one of the Robinson, tional.” United v. States 361 stated, we conclude 220, 229, 282, 4 259 U.S. S.Ct. L.Ed.2d request that dismiss this must appeal we (1960); Dir., see also Browder v. Dep’t of be denied. Corrections, 257, 264, 434 U.S. 98 S.Ct. (1978) 556, L.Ed.2d (noting that the Ill jurisdictional purpose time limit for Hartwell contends that dis is “to point set a definite of time subject-matter juris trict had court never end”) litigation when shall at an (quoting accept diction in this case to guilty tton Co. v. Murphy, Steamboat Mo charged or to him because he was 412, 415, U.S. 63 S.Ct. 87 L.Ed. 1483 information, indictment, by an not an (1943)). The argues alterna an potentially offense that carried the tively that though challenge even to sub penalty. argues right death He to ject-matter jurisdiction can be made at prosecuted on an indictment for crime time, Smith did not establish a rule punishable waived, death not be jurisdiction. govern citing Smith v. United 360 U.S. did, ment maintains further that even if it (1959) “meaning jurisdiction has changed (ruling that the information to which the intervening years since the Su pleaded guilty defendant confer “did not preme Court decided Smith.” See United power convicting on the court to hear the Cotton, States case”), and Federal Rule of Criminal Pro (2002) (noting S.Ct. L.Ed.2d 860 (requiring prose cedure 7 an indictment to earlier an Court decision’s elastic con cute an punishable by offense death cept of is not what the term imprisonment year for more than one and “jurisdiction” today means courts’ —“the authorizing of an waiver indictment statutory or adjudi constitutional for punishable by offenses imprisonment holding cate a case”—and “defects year more than one deprive for offenses indictment do not a court of its —not death). adjudicate punishable power a case” by necessarily in add This ed)). cludes a claim that the district court did

not have to consider the Rule Initially, we note our with 35(b) motion. If the district court lacked government’s judicial the position that pol- subject-matter jurisdiction, it never had icy strongly favors that convictions and power the any case, to consider part of the Any sentences become final.1 challenges 1. concurring opinion, In her Judge Williams Hartwell’s conviction and sentence were val- challeng- concludes that Hartwell’s time for idly post entered. See 724. at ing subject-matter jurisdic- the district court’s This conclusion seems inconsistent with the gone” tion "has come and and we now must Supreme establishing jurisprudence Court’s challenge treat his mo- tion to "power withdraw its Rule as if that a court’s hear a case ... can

715 charged appellate kidnapping, at the after the to a possibility time the death may general carried the complete therefore process victim specific penalty to a if the was harmed. only pursuant ly brought be review, pleaded guilty such information to which Smith collateral as authorization not whether party sug But a did state the victim had been § 2255. when juris harmed, government did and the not ex- gests the absence case, a the intention to diction, stage plicitly disavow seek at this late even In only penalty. Supreme death what original party questions conviction, “precipitous Court as tele- power to sentence and described and but 4, scoped 79 proceedings,” or the sen 360 U.S. at power to correct reduce 35(b), 991, interrogated at Smith was and therefore we S.Ct. tence under Cotton, counsel, length after which the generally it. 535 must address See 630, 1781; government agents parte had an ex con- 122 Steel Co. v. at S.Ct. U.S. Env’t, 83, 89, judge regarding 523 U.S. versation with Better Citizens for (1998). 1003, colloquy” 140 210 case. A “stilted formal en- L.Ed.2d 118 S.Ct. sued, counsel, during which Smith waived is because This waived”; indictment, venue, “it waived the waived “never forfeited or can 3, a to an information. at pleaded guilty a to hear case.” Id. involves Cotton, after 630, Immediately 79 S.Ct. 991. conviction at 122 S.Ct. 1781. days arrest, only three after Smith by subject- And action court without years’ imprisonment. was to 30 sentenced jurisdiction is “ultra vires” and Ruhrgas AG v. Marathon therefore void. “summary Obviously troubled Co., 574, 583, 1563, 119 526 S.Ct. Oil U.S. defendant, 9, id. at 79 treatment” (1999) Co., Steel (quoting 991, that Federal S.Ct. the Court held 1003). 101-02, 118 523 U.S. at S.Ct. 7 did per- Rule of Procedure Criminal criti- mit Smith to waive indictment. The position that the district support To infor- holding cal of this was basis subject-matter jurisdic- did have court guilty plea against mation Smith and 35(b) motions, the Rule consider capital element of did not eliminate the decision in points crime: 1, U.S. 79 Smith 360 United [Wjhen charged the offense as is suffi- and to Rule 7. 3 L.Ed.2d

S.Ct. verdict, Smith, justify capital Smith, defendant, ciently broad " Co., Cotton, Ruhrgas AG 526 vires.' v. Marathon Oil or waived.” 535 never forfeited S.Ct. The Court has U.S. at U.S. L.Ed.2d principle expressly (second extends even (1999) original) held that omission judgment: objection beyond entry "The 101-02, Co., (quoting U.S. at Steel subject-matter juris lacks federal court 1003). S.Ct. party, byor be raised diction ... Judge ar- appears Williams is initiative, any stage its own guing even if a conviction sentence litigation, entry even after trial and were were ultra therefore entered vires Corp., judgment.” Arbaugh H v.Y & void, ruling stand a we should nonetheless let - U.S. -, -, S.Ct. 163 L.Ed.2d decrease leave on a motion to (2006); Caterpillar, Inc. v. Lew see also 61, 76-77, a void as But sentence entered. 467, is, S.Ct. 136 519 U.S. 117 increased, decreased, legitimately not (1996). principles These are L.Ed.2d 437 original if the under Rule maintained grounded subject-matter juris in the fact that void ab was ultra vires and therefore judicial power, question of and for diction is a initio, subject-matter juris- " lack of jurisdiction 'when it no to a court to act be forfeited or waived. diction cannot act ... court to ultra do so ... is 716 basis, (5th 661, trial must on proceed Jacquez-Beltran, v. 326 F.3d 662 though

even the evidence later estab- Cir.2003); States, Alikhani United 200 that such a lishes verdict cannot sus- (11th 732, Cir.2000). F.3d 734-35 victim tained because the was released in on language While Smith which It neither procedurally unharmed. is Hartwell relies—that the defendant’s waiv- to practical correct nor await the conclu- power “did not ers confer on the convicting to sion of the evidence determine wheth- added)— to hear (emphasis court the case” being prosecuted er accused for a is suggest might Court Smith was capital offense. addressing subject-matter jurisdiction and 8, concluded, Id. at The S.Ct. 991. Court denying thus district courts further explanation: “Under our jurisdiction over federal capital criminal 7(a), view of Rule the United Attor- States used, cases which an indictment was ney authority did not have an infor- file Supreme Court’s recent discussion in mation in this case and the waivers made would to preclude Cotton seem that conclu- by petitioner were binding and did not Cotton, sion. In the Court overruled Ex power convicting on the court confer Bain, 1, 781, Parte hear the case.” Id. 79 S.Ct. 991 (1887), L.Ed. 849 which held defects added). deprive an indictment the district court argues that language this jurisdiction. of As the Cotton Court stat- requires Smith the conclusion that the fail- ed: ure prosecute to obtain indictment to Bain, however, product is a of an era in capital strips case which this authority Court’s to review subject-matter jurisdiction. disagree. We criminal greatly convictions was circum- A reading careful of Smith and consider- decided, scribed. At the time it was ation of how that decision has been under- defendant could not obtain direct review subsequently stood Supreme Court of his Supreme reveal that the criminal conviction in the speak- Court Smith was ing of authority some authorization other than sub- Court. The Court’s to issue a ject-matter jurisdiction. corpus writ of habeas was limited to cases in convicting which the court had (in Subject-matter jurisdiction the sense jurisdiction no render the judicial power) over federal criminal gave. therefore, which it prosecutions is on conferred district courts Court could examine constitutional er- § 3231. As the Seventh Cir- rors in a criminal only trial a writ noted, cuit has corpus, habeas then if it Subject-matter jurisdiction every fed- jurisdictional. deemed the error eral prosecution criminal comes from 18 Court’s desire to correct obvious consti- U.S.C. and there can be no tutional violations led to a somewhat permits Congress doubt that Article III expansive jurisdiction, notion of assign federal prosecutions more to federal of a fiction than anything courts. That’s the else. beginning and the end of “jurisdictional” inqui- concept Bain’s elastic ry. what “jurisdiction” the term means today, i.e., statutory the courts’ or con- Hugi v. United 164 F.3d (7th Cir.1999); power adjudicate stitutional see case. also United States v. (6th This latter Titterington, concept subject-matter ju- F.3d Cir. 2004); Horse, risdiction, United States v. White because it involves (8th Cir.2003); F.3d case, hear can never be

717 party’s application, unalterable on a can Consequently, de- or waived. forfeited jurisdiction subject-matter re- forfeited if as- party nonetheless be the fects of regardless whether correction quire serting long rule waits too to raise the the in district court. was the error raised 456,124 (emphasis at 906 point.” Id. S.Ct. contrast, grand right jury the can added). waived. a just claim-processing Rule such 7 is cases confirm Post-Bain defects process by It the a rule. describes which a deprive do not court indictment of charged defendant must be in order adjudicate a case. power to Fifth comply the Amendment re- with Cotton, 629-30, at 122 S.Ct. 1781 535 U.S. quirement person shall be held “[n]o added) (internal quotation (emphases capital, a or infa- answer for otherwise omitted). The Su- and citations marks crime, mous on a presentment unless Court, support of citing preme Smith pro- the Jury,” indictment of Grand jury grand right, proposition the by may cess a defendant waive the which waivable, subject- does not involve Although protections of that Amendment. that “a jurisdiction, plainly stated 7 permit does not a defendant jurisdiction ‘has of all crimes court in- charged capital crime to waive authority Unit- cognizable dictment, it that noncom- does follow ” States,’ id. at S.Ct. 1781 ed juris- subject-matter pliance is a defect Lamar v. 240 U.S. (quoting United is jurisdiction diction. The district court’s (1916) S.Ct. 60 L.Ed. by conferred J.)). (Holmes, by not be conduct of litigation affected again Supreme Court elaborat parties. permitting if engendered by an ed on the confusion error, by charged information were “subject-matter imprecise use the term the district an error denied jurisdiction” Ryan, in Kontrick v. adjudicate the federal (2004). L.Ed.2d 867 prosecution. There, only Congress the Court noted had conclude that district court We may alter a district court’s consider the court-prescribed and that rules and to procedure government’s neither create motion practice jurisdiction. at to with- government’s nor withdraw U.S. consider the motion “merely rules 124 S.Ct. 906. Such draw that motion. prescribe juris method by Congress granted diction courts IV 454, 124 at be exercised.” Id. S.Ct. now consider We added). then exhort The Court application plea court’s ed, if “Clarity would be facilitated courts con parties. entered into ‘jurisdictional’ used litigants the label grant tends that the district court erred rules, but claim-processing

not for ing motion to withdraw prescriptions delineating classes of because, under the its Rule persons ... falling and the with cases ... agreement, did authority.” adjudicatory Id. previ “to retain the discretion withdraw Subject-matter ju 124 S.Ct. 906. motion.... ously sentence-reduction filed on the risdiction cannot be altered basis plea agreement provision litigation [A]bsent conduct. claim- parties’ “[A] withdrawal, hand, govern- rule, processing governing on the other even such if orandum that it filed did not precluded withdrawing ment was its constitute a agreement, motion.” He reasons: new was a continuation of but original plea agreement by the the enu- agreement the [Paragraph specif- ten of meration of instances of government specific coopera- once the ically states that departure required that such a tion of Hartwell.2 “determines departure appropriate,” the motion will the language giving We conclude that that determination filed. Once was government the discretion” “sole to file a made, had an government obligation the 35(b) motion also includes the discre- motion, proceed to with the absent lan- tion to file a to motion withdraw it. This guage contrary. in the explicitly was parties understood did, fact, It in file the motion. Because when government initially filed the in language there was no the contract to motion in August Because Hartwell government contrary, should not was in of cooperating, then the midst to have been allowed withdraw its mo- parties delay ruling asked the court to tion. motion, government and the reserved alternatively Hartwell argues if the right Indeed, its to withdraw the motion. government did retain discretion to with- attorney agreed that “if the de- 35(b) motion, draw its Rule the memoran- fendant responsibilities fails to fulfill his government dum that the filed on March Government, may Government 35(b) in support its Rule mo- objection withdraw this motion modified the discretion the defendant.” right limited its withdraw the Rule understanding This was consistent with 35(b) motion to the circumstances which specific purpose of the agreement provide Hartwell failed to truthful testimo- this case. the motion Because had to be ny in the B.N. trial referred to in footnote filed within year one the sentencing and 1 of the memorandum. Hartwell ar- also yet Hartwell had not finished cooperating, gues that government acted in bad parties agreed that the motion awas 35(b) faith in withdrawing its Rule motion “placeholder,” preserve intended because the “government’s rationale for government’s ability to seek a sentence withdrawal a relatively insignifi- rested on reduction for Hartwell after he completed cant happening.” cooperation government and after the contends that the plea was able to evaluate his assistance agreement gave it “sole discretion” to de- provide full information to the district 35(b) cide motion, whether to file Rule court. 35(b) and that its motion withdraw simply part of that We additionally discretion. conclude gov- It also argues May that the 2003 mem- ernment relinquish did not discretion 2. The right also contends that that the appeal defendant waived his any right waived seek government's review of its decision not to move for a appeal decision because he waived departure). argues of all downward (“on sentencing any ground whatever”) issues plea breached the plea agreement. in his agreement, See rely United States v. pro- on its waiver Emerson, (7th Cir.2003) Bowe, F.3d vision. See States United 257 F.3d (holding (4th Cir.2001). sentencing waiver We need not ad- regarding issues “appeals included reductions dress the waiver because we find cooperating govern government, seeking sentence for with the to withdraw ment”); motion, see also United States v. its Rule did not breach the Benitez-Za pata, (11th Cir.1997) agreement. (holding F.3d 1444 government it new The took imposed in when Hartwell’s June part whole (relating promise in affidavit to view of deficien- 2003 made conditions Hartwell sentence) supplemental 18-year The of an cooperation. in his him as an unac- cies in March 2001 letter ceptable the reoccurrence of his con- agreement earlier modify this by the did not signed parties perjury. government ceded The rec- also That letter agreement. aspect the that ognized this second serious incident of prob- into entered after agreement was perjury substantially govern- undercut the come cooperation had ability lems with to Hartwell ment’s use as witness It to the light. was executed reinforce to already in the future. Hartwell had that must understanding Hartwell original perjury to committed claimed have cooperate fully truthfully, and but with still in Maryland McGill case the District of conditions, govern- and that the additional then that claim. and recanted when still “consider him for a sen- ment would in stating he filed false affidavit appropriate reduction motion at the tence government promised had him an added). time” sentence, recanted, 18-year he added especially significant to and thus made his Likewise, in government’s March history of false The making statements. support its Rule 2003 memorandum government obligation has an to ensure 35(b) motion, relies, on which Hartwell cooperating testify that witnesses truthful- suggest no to a relin- language there is ly, reasonably and it that it concluded discretion. quishment longer could no Hartwell truth- trust to be simply The footnote relied on Hartwell Moreover, admittedly ful. with two false “principal” that reason for the recites recantations, statements Hartwell cre- to government’s willingness keep open ated about himself excellent fodder for motion for re- consideration of a impeachment cross-examination truth- “anticipated duction was Hartwell’s prosecution might future which he Moreover, testimony against ful [B.N.].” A government. attor- used defense not state it is the the footnote does that ney argue could that these examples two motion; only reason or basis for willing say indicate that Hartwell is to “principal” implies of the use word court, oath anything, even lie under The reasons or bases. existence other If get in order to a lower sentence. Hart- if also that fails to footnote states “insignificant happening” did not de- well’s testimony, govern- truthful provide stroy credibility altogether, certainly his position ment “will take the that [he] it to that point govern- weakened in a breach of his engaged material ment acted well within its discretion provide commitment to deciding longer no was satis- assistance to Government.” substantial factorily fulfilling plea-agreement obli- however, does limit the language, This gations. simply It identifies government’s options. qualify that would as particular

one event short, we conclude that in this case breach, of other such not exclusive the sole reserved itself events. discretion file a motion under Rule reduction; for a sentence this discre-

Finally, by Hart- persuaded we are not right included withdraw prompt- well’s that the incident failure cooperate; motion for Hartwell’s government to ing the withdraw its relin- “insignifi- never for reduction of sentence was an Moreover, quished this discretion. there happening” cant that evidences a lack government acted faith on is no evidence that the good government. bad faith or for motives. improper Any and sentences become final. chal- simply that Hart- lenges concluded after the many. process had told one lie too appellate complete well therefore may generally brought only pursuant V a specific authorization for collateral re- reasons, we For these same conclude view, (internal § as such 2255.” the district court did not abuse its that omitted)). footnotes denying discretion eviden- with agree I this it is conclusion because tiary hearing govern- on his claim that 12(b)(3)(B) required Rule of the Feder plea agreement. breached the ment of al Rules Criminal That Procedure. Rule states that “at time while * * * pending, case is the court hear a given, For the reasons claim that the indictment or information January is court’s 2004 order invoke jurisdiction.” fails to the court’s AFFIRMED. 12(b)(3)(B) (emphasis Fed.R.Crim.P. add ed). district court judgment entered WILLIAMS, concurring Circuit Judge, on Hartwell’s conviction on and sentence concurring judgment. August and the conviction I, II, IV, concur in I Parts and V of the sentence became final well before Hartwell III, majority opinion. As to I Part would Smith argument appeal. raised his on this question reach the of whether dis- 4(b)(l)(A)(i-ii) See Fed. R.App. P. (provid subject-matter jurisdic- court lacked trict ing that the defendant must file an Smith v. United under 360 of days entry his sentence within ten (1959), U.S. judgment or within days ten to rule the Government’s Criminal Rule filing Government’s of á appeal). notice of 35(b) Instead, respect motions. with Once Hartwell’s conviction and sentence majority, I would conclude that became final and Hartwell file a failed to Hartwell’s Smith is argument untimely. timely appeal, his criminal no case was majority rejects Because Hartwéll’s longer “pending” purposes Rule merits, Smith argument concluding on its 12(b)(3)(B), despite the fact that his sen subject- the district lack that court did not tence could modified as authorized jurisdiction, I in the judg- concur Congress, such as under Rule Criminal ment. 35(b) 3582(c) (West § or Supp. 18 U.S.C.A. Sanders, 2005). See United States v. case, my analysis To understand of this (4th Cir.2001) F.3d (noting that helpful keep procedural it is its mind 3582(b), plain § language posture is appealing the district —Hartwell fact that a sentence can be pursu modified order allowing Government 35(b) 3582(c) ant to Rule Criminal withdraw Criminal Rule motion. finality does not affect the In his brief on the conviction appeal, argued for see purposes”); and sentence “for all other the first time that the district lacked Valadez-Camarena, also United States v. subject-matter jurisdiction under Smith 1259, 1260(10th Cir.2005) (reject 402 F.3d enter conviction and sentence. The majority ing jurisdictional argument challenge concludes that to a final con this See viction and sentence without considering properly appeal. before us on (“[W]e ante at 714-15 challenge note merits of the our case judi- longer position “pending” was no under Criminal policy 12(b)(3)(B)); cial strongly favors that convictions Rule Wolff, United States v. Cir.2001) (8th view, my Hartwell’s fail- and sentence. 1055, 1056-57 241 F.3d (“[A]fter timely the defen- ure to raise his Smith [on final was en- sentence] “pending” pre- conviction criminal case was dant’s while his not file a did defendant] arguing [the tered him from cludes now Smith proceeding[] appeal, [criminal] direct to conclude that requires us purposes of pending longer [for no w[as] court lacked to Criminal precursor on the rule Government’s Criminal time, 12(b)(3)(B)].”). convic- At that motions for the same reason insulated tion and sentence became argu- Hart-well’s failure to raise his Smith challenge except a collat- jurisdictional “pend- criminal case ment while his un- proceeding as a proceeding, such eral arguing him ing” precludes from now (West Supp.2005). § 2255 der 28 U.S.C.A. requires to vacate his conviction Smith us arguing 12(b)(3)(B) that the district In addition to and sentence. Criminal Rule jurisdiction subject-matter lacked court jurisdictional does not countenance attacks conviction and to enter his under Smith on an indictment when the defendant’s sentence, argues also (ex- longer “pending” criminal case is no juris- subject-matter court lacked course, challenge cept, of when the comes to rule on Govern- diction under Smith review). permits on collateral The Rule of 35(b) In Rule motions. ment’s Criminal jurisdictional exceptions, no even when a majority argument, addressing this logical predi- attack on the indictment is a court indeed that if the district concludes cate to a further attack on the district jurisdiction under subject-matter lacked subject-matter jurisdiction to hear court’s Hartwell’s to enter conviction Smith 35(b) modify motion to a Criminal Rule sentence, then his conviction and sentence To Hart- defendant’s sentence. consider void, the district court would would the extent argument well’s Smith —even rule on subject-matter jurisdiction to lack subject- challenges the district court’s it 35(b) modify motion to Rule Criminal jurisdiction rule on the Govern- matter (noting ante at 714 n. his sentence. See Rule motions—al- ment’s Criminal and sentence entered that a conviction slip through the back lows an jurisdiction is subject-matter 12(b)(3)(B) already when Rule door not “legitimately and therefore “void” closed the front. decreased”). majority ulti- ... The con- majority reasons that we must rejects argument, how- mately argu- of Hartwell’s Smith ever, did not render sider the merits concluding that Smith subject-matter challenges the district as it the district court without ment insofar his conviction and sen- to rule jurisdiction to enter tence. on the Government’s Criminal subject-mat- questions motions because majority’s conclusion disagree I jurisdiction go ter subject- court lacked if the district “can a case and therefore court to hear to enter jurisdiction under Smith at 715 or waived.” Ante never be forfeited sentence, it Hartwell’s conviction Cotton, 535 U.S. States v. (quoting United jurisdiction subject-matter lack would also 122 S.Ct. Criminal to rule on Government’s law, (2002)). study of our case A close 35(b) motions, I would therefore however, of law that this statement reveals of whether the district question reach the why I discuss- explain absolute. subject-matter jurisdiction lacked civil cases. one of our recent ing conviction to enter Hartwell’s under Smith (4th Leonard, 431 F.3d 410 look for courts must the rare instance of Wendt Cir.2005), against filed an action usurpation power. Wendt a clear A court Leonard, who, acting pursuant to state- plainly usurps jurisdiction only when authority, conferred had seized Wendt’s jurisdiction there is a total want satisfy a tax lien. Id. at 411. The boat arguable no [there is] basis district court dismissed the action for lack finding could have rested a that it had jurisdiction under the jurisdiction. Injunction Tax Act. Id. After the district (internal Id. at quotation citations and suit, Leonard filed a court dismissed omitted). Applying legal marks stan- sanctions, motion for which Wendt did dard, we concluded that it was immaterial Concluding at 412. oppose. Id. sanc- subject-mat- whether the district court had inappropriate, the district court tions were attorney’s ter to enter fees fees, attorney’s instead awarded Leonard against Wendt the district court suit concluding Wendt’s was frivolous. arguable had “an basis” for asserting sub- Id. did not Wendt ject-matter jurisdiction to do so. Id. fees, attorney’s court’s award but six Navigation See also Des Moines & months later he filed a motion under Rule Co., R. Co. v. Iowa Homestead 60(b)(4) of the Federal Rules of Pro- Civil (1887) (hold- 31 L.Ed. 202 cedure—which authorizes district courts to ing subject-matter that defense of lack of vacate an final if otherwise order “the jurisdiction prior over suit could not be judgment arguing that the dis- void”— judicata raised to defeat res effect of the subject-matter jurisdic- trict court lacked (cited prior, final judgment) approval and, tion over his suit accordingly, that Ryan, Kontrick v. 455 n. subject-matter jurisdiction also lacked (2005)). attorney’s award fees to Leonard. Id. I do not argue discuss Wendt to that it appeal On Wendt’s the district court’s here; directly controls Wendt was a civil 60(b)(4) motion, denial of his Civil Rule we case, whereas appeal relates to noted: Instead, his criminal sentence. I discuss An purposes order is “void” for of [Civil] Wendt to show that considerations final 60(b)(4) Rule ... if rendering the court ity that subject-matter dictate issues of subject the decision lacked ... matter jurisdiction can be waived in certain situa jurisdiction.... Despite seemingly this despite tions the fact go that such issues statement, broad narrowly we construe very power of the court to hear the concept of a “void” order under [Civ- Wendt, then, case. Under a more accurate 60(b)(4) precisely Rule il] because of the statement subject- of law than “issues of threat finality judgments and the jurisdiction matter cannot be forfeited or risk that litigants ... will use [Civil] subject-matter waived” is that “issues of 60(b)(4) Rule circumvent an jurisdiction can never be forfeited or process they elected to follow. In waived words, pending, while the case is other but such subject a lack of matter jurisdiction issues can always will not be deemed forfeited render a final or waived void once the judgment [under Civil Rule becomes final and is not 60(b)(4) Only jurisdictional when appealed.” words, ]. In other while Hartwell egregious error is will may courts treat challenge, even for the first time on judgment as void. appeal, subject-matter the district court’s jurisdiction when deciding whether an to rule on the order is Government’s 60(b)(4) “void” under motions, Rule Rule [Civil] for he do so subject lack jurisdiction, matter attacking jurisdictional integrity of jurisdictional defect in his The time to conviction and sentence. his conviction gone, “egregious” come and and sentence is but that challenge has make that Hartwell, however, pur- convic it exists. has not now treat Hartwell’s and we must relief, this avenue of they validly as were sued Criminal and sentence if * 12(b)(3)(B)requires Rule that we treat his entered. though conviction and sentence as the dis- 12(b)(3)(B), view, Rule my In Criminal trict court had idea; 60(b)(4), like Rule embodies Civil it, if, review, on to enter even collateral we indeed, rigid than Civil it is even more that would conclude the district court was 60(b)(4) 60(b)(4). allows a Civil Rule jurisdiction. without such argument litigant prevail civil difficulties, analytic subject-matter ju- addition to its court lacks majority’s reasoning prob- practical presently on a matter before risdiction Consider, ju- following subject-matter example, lems. court because it lacked prior if the facts: The Government indicts defendant prior over a matter risdiction felony “egregious.” on a and tries his case before jurisdictional error was Wendt, magistrate judge. federal The defendant 431 F.3d at 413. Criminal hand, 12(b)(3)(B), argue magistrate judge does not provides on the other argu- to convict him—an entry of a final conviction' and is certainly prevail almost the district ment would sentence bars 3401(a) (West jurisdiction Supp. on a under 18 U.S.C.A. court lacks 2005) (“When specially designated to exer- before the court because presently jurisdiction by such the district court subject-matter jurisdiction to en- cise it lacked serves, any or courts he conviction and sentence ter the defendant’s course, magistrate judge shall have place. Of a criminal the first of, try persons per- avenue accused and sentence statutory collateral defendant has of, subject- sons convicted misdemeanors commit- attacking the district court’s judicial within that district” jurisdiction to enter his conviction ted added)) secures a they have become Government and sentence even after —and timely and, The defendant neither litigant challenging a civil conviction. final unlike timely petition nor files a under validity prior judgment appeals under 60(b)(4), Sentencing § later 2255. The Commission the criminal defendant Civil range retroactively sentencing lowers the collaterally not show that proceeding need * (jurisdictional argument first Nothing primary S.Ct. 1781 cases cited Co., Corp., majority Arbaugh v. Y & H - U.S. appeal); direct Steel 523 U.S. raised on — 1235, -, 126 S.Ct. 163 L.Ed.2d 1097 88, argument (jurisdictional at 118 S.Ct. 1003 Cotton, 625, (2006), v. 535 U.S. United States petition with the raised in for certiorari first 1781, (2002), L.Ed.2d 860 122 S.Ct. Court). Harmonizing cases Supreme these Env't, 523 U.S. Steel Co. Better Citizens for 9, 443, Ryan, 455 n. with Kontrick v. 540 U.S. 1003, 83, (1998)— 118 S.Ct. 140 L.Ed.2d 210 (2005), Des 124 S.Ct. true, contrary. While it is as the is to the Navigation Co. v. Iowa Home Moines & R. suggests, majority that each of those cases Co., 8 S.Ct. 31 L.Ed. stead 123 U.S. subject-matter jurisdiction cannot state that Leonard, (1887), F.3d and Wendt v. waived, they do so in the context a live be (4th Cir.2005) produces I the rule have not, here, appeal, but as in the context of an text —“issues of stated in the the time attack on a final for which or waived jurisdiction can never be forfeited Arbaugh, long-since passed. to can pending, but such issues while the case is (jurisdictional at 1241 judg forfeited or waived once be deemed ap trial but before time to first raised after Cotton, appealed.” final and is not ment becomes peal lapsed); sentenced, majority’s

in which the defendant was ed in Part III of I opinion, the defendant files a motion with the dis- concur in concur in part judgment. trict court to reduce his sentence accord

with the amendment. See 18 U.S.C.A. SHEDD, Judge, concurring. Circuit 3582(c)(2) (authorizing § to sentence if the reduce defendant’s join I, III, I fully parts of Judge V Sentencing retroactively Commission re- Niemeyer’s opinion. respect part With sentencing range duces the which defen- II, I appellate jurisdic- would hold that our sentenced). considering dant was solely § tion arises out of 28 U.S.C. motion, merits his the district court Therefore, as Hartwell asserts. magistrate judge becomes aware Judge Niemeyer extent that holds was without enter the defen- jurisdiction § that we have I under dant’s conviction and sentence. Under the agree analysis. However, with his I do majority’s analysis the defendant would agree Judge Niemeyer’s analysis unable secure his release jurisdiction that we also have under 28 (“[W]e prison, see ante at 714 note § Judge Niemeyer U.S.C. 3742. relies on government’s our with the posi- (4th v. Pridgen, 64 F.3d 147 judicial policy strongly tion that favors Cir.1995), in concluding appellate that our that convictions and sentences become fi- jurisdiction § arises I do not Any nal. challenges judg- believe that Pridgen controlling. That appellate process ment after the is com- sentence, case revolves around Pridgen’s plete may generally brought therefore specifically the district court’s refusal to only pursuant to a specific authorization grant request for a review, for collateral such as 28 U.S.C. departure. downward Hartwell is not ask- (internal § omitted)), 2255.” footnotes he ing this Court to review his otherwise final would also be unable obtain the sentence or decision reduction to which he the district court is entitled —for if magistrate judge jurisdic- Rather, affecting was without his sentence. ap- he is sentence, tion to enter the conviction and pealing a final order that he believes erro- majority would view the sentence as neously interprets plea agreement “void,” and conclude that the district court allow the withdraw lackes to take action on claim, motion. as sentence, see ante at 714 n. 1 (noting notes, Judge Niemeyer ante at that a conviction and sentence entered amounts to a request specific perform- plea agreement. ance “void” and “legitimately therefore IV, As to I agree Judge decreased”). ... In addition to its Niemeyer that appeal Hartwell’s is not unfairness, evident this result ac- fails to precluded by appeal cord a waiver and that defendant’s sentence and conviction 12(b)(3)(b) respect Criminal Rule did not breach the requires. agreement by moving to withdraw the However, motion. I cannot sum, the time for Hartwell to raise join in footnote because I believe that Smith has come gone (except on col- appeal waiver on prevents its face review). lateral Until his conviction and appealing his sentence. review, are vacated on collateral I interests in Since would find this finality appeal under dictate that we must treat they them as if challenge are valid. 1291 is not a Because of analytic practical sentence, difficulties creat- simply waiver is therefore, and, need not ad- we applicable it further.

dress DUNCAN, Jacqueline Debtor.

In re Duncan, of the Es Administrator

James Duncan, Meigan Lin

tate of a/k/a

Yang Song, Plaintiff-Appellant, Chun Duncan,

Jacqueline Defendant-

Appellee.

No. 05-1159. Appeals, Court of

Fourth Circuit. 2, 2006.

Argued Feb. May

Decided

Case Details

Case Name: United States v. Erskine Hartwell

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 24, 2006

Citation: 448 F.3d 707

Docket Number: 04-6214

Court Abbreviation: 4th Cir.