625 F. App'x 901
10th Cir.
2015

UNITED STATES оf America, Plaintiff-Appellee, v. Marconia Lynn GREEN, Defendant-Appellant.

No. 15-6098

United States Court of Appeals, Tenth Circuit.

Sept. 14, 2015.

622 Fed. Appx. 901

BOBBY R. BALDOCK, United States Circuit Judge.

The Commissioner contends that Ms. Smith waived her appellate arguments concerning the ALJ‘s analysis of her affective disorder (depression) because she failed to make sufficiently specific objections to the magistratе judge‘s R & R. We agree.

In her brief to the magistrate judge, Ms. Smith‘s entire argument concerning the ALJ‘s alleged failure to properly evaluate her depression was buried in part of a single sentence toward the end of a six-page discussion focused on obesity: “Because the ALJ failed to acknowledge or consider [hеr] obesity and did not provide any meaningful analysis concerning the impact of her affective disorder, he effectively did not evaluate these impairments at steps four and five of the sequential analysis.” Aplt. App., Vol. II at 400 (emphasis added). The magistrate judge nonetheless mentioned the “argument” about her depression in his R & R and concluded that Ms. Smith failed to identify any error:

[T]he ALJ‘s decision includes a discussion of the evidence related to [Ms. Smith‘s] depression, including reference to the report of the consultative psychological examiner . . . and specific findings as to the severity of functional limitations stemming from her depression based on her subjective testimony and statements in the record and [the] report. [Ms. Smith] does not point to evidence in the record that was probative of the issue and was not discussed in the ALJ‘s decision.

Id. at 424.

Ms. Smith‘s objections to the R & R concerning her depression were as flawed as her initial conclusory аssertion. Instead of identifying any specific error, she merely repeated the above-quoted statement from her earlier brief. Understandably perceiving no objection, the district court did not even mention Ms. Smith‘s affective disorder (depression) in its decision adopting the R & R. We hold that Ms. Smith did not preserve the issue for appeal.2

The judgment of the district court is affirmed.

Steven W. Creager, Virginia Loreen Hines, Leslie M. Maye, Office of the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Marconia Lynn Green, El Reno, OK, pro se.

Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges.*

ORDER AND JUDGMENT **

BOBBY R. BALDOCK, United States Circuit Judge.

In 2011, the district court sentenced Defendant Marconia Green to 130 months’ imprisonment after he pleaded guilty to three counts of using a communication faсility to facilitate the acquisition of cocaine powder in violation of 21 U.S.C. § 843(b). Three years later, Defendant, appearing pro se, petitioned the court to modify or reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) after he learned of the addition of Amendment 782 to the United States Sentencing Guidelines (USSG). Thаt Amendment “reduces by two levels the [base] offense levels assigned” to certain drug-trafficking offenses. U.S. Sentencing Guidelines Manual app. C, amend. 782 (Supp.2014). The district court denied this request. The court subsequently denied an additional “letter-motion” the Defendant authored that the court interpreted to request similar relief. Defendant now appeals these denials as a “violation of his constitutional rights.” Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

A grand jury initially charged Defendant with seven counts of possession with intent to distribute both cocaine base and powder and three counts of using a communication facility to facilitate the acquisition of cocaine powder in 2010. Pursuant to a plea agreement, the government dismissed the seven counts relating to possession, and Defendant pleaded guilty to the three communication-facility counts. The presentence investigation report (PSR) placed Defendant in criminal history сategory VI and observed that had the seven possession counts not been dismissed, Defendant‘s total offense level would ‍‌‌‌​​‌​‌‌​​‌‌‌‌​​​​‌​‌​​​​​‌‌​​‌​‌‌‌​‌​​‌​​‌​​‌​‍have been 31 with a corresponding guideline range of 188 to 235 months’ imprisonment. The PSR, however, concluded that the absence of the dismissed counts lowered Defendant‘s total offensе level to 25, which corresponded to a guideline range of 110 to 137 months’ imprisonment. Moreover, the parties had stipulated to a lesser amount of cocaine base in the plea agreement than the amount the PSR recommended. The PSR noted that if the court accepted this stipulation, it wоuld further lower Defendant‘s total offense level to 23 with a corresponding guideline range of 92 to 115 months’ imprisonment.

The district court accepted the stipulation but imposed an upward-variant sentence of 130 months’ imprisonment—15 months more than the high end of the guideline range—after noting Defendant‘s extensive сriminal history and the need to deter him from further criminal acts. Defendant directly and collaterally attacked his conviction and sentence, but both attempts failed. See United States v. Green, 504 Fed.Appx. 771 (10th Cir.2012); United States v. Green, 548 Fed.Appx. 557 (10th Cir.2013).

Thereafter in November 2014, Amendment 782 to the USSG became effective. Defendant noted that this Amendment could potentially reduce his sentence by lowering his total offense level from 23 to 21. See U.S. Sentencing Guidelines Manual app. C, amend. 782 (Supp.2014). In December he asked the district court to apply Amendment 782 to reduce his term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) authorizes a district court to amend a defendant‘s “term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The district court denied this motion on February 24, 2015, without significant explanation.

On April 9, Defendant—either unaware of or disregarding the court‘s denial—filed a “letter-motion” in the district court asking the court to appoint him counsel in his previous request for a reduced sentence. He wrote the court once more on May 4, providing it with further information and details about himself to help the court in its “determination on a two-point reduction.” The court, unsure of what to make of the “letter-motion,” held that it plausibly could be “construed as a motion for reconsideration of the court‘s denial of defendant‘s § 3582(c)(2) motion” and ultimately denied this motion on May 7. Defendant learned of this denial on May 12 and mailed his notice of appeal to the district court on May 21. This notice of appeal was ultimately filed on May 22 and alleged that the district court “violаt[ed] . . . his constitutional rights” when the court denied his “reduction of sentence pursuant to Amendment 782” and his “letter motion requesting appointment of counsel.”

II.

As an initial matter, it is unclear whether Defendant‘s notice of appeal challenges the district court‘s February 24 order de-nying his motion to modify or reduce his sentence, or whether it challenges the district court‘s May 7 order denying his motion to reconsider. Practically, the distinction makes little difference: Defendant‘s arguments on appeal fail regardless of the ruling they are challenging.

We first operate under the assumption that Defendant is challenging the district сourt‘s February 24 order. A motion to modify or reduce a sentence under § 3582(c)(2) is a continuation of the prior criminal proceeding. United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th Cir.2003). Thus, the time requirements of Fed. R.App. P. 4(b)(1)(A) apply. This rule mandates that “[i]n a criminal case, a defendant‘s notice of appeal must be filed in the district court within 14 days after . . . the entry of either the judgment or the order being appealed.” Although this rule is not jurisdictional in nature and gives us discretion to hear an untimely appeal in certain situations,1 United States v. Randall, 666 F.3d 1238, 1241 (10th Cir.2011), it is still inherently “inflexible,” United States v. Garduño, 506 F.3d 1287, 1291 (10th Cir.2007), and “must be enforced by this court when properly invoked by the government.” United States v. Mitchell, 518 F.3d 740, 744 (10th Cir.2008).

Defendant filed his notice of appeal on May 22, 2015. This well exceeds the fourteen-day filing limit from the date of entry of the district court‘s February 24 order. Because the Government “properly invoked” a Rule 4(b)(1)(A) challenge to the timeliness of Defendant‘s appeal in its response brief, and because Defendant proffers no arguments contending that his delay in filing should ‍‌‌‌​​‌​‌‌​​‌‌‌‌​​​​‌​‌​​​​​‌‌​​‌​‌‌‌​‌​​‌​​‌​​‌​‍be excused, Defendant‘s notice of appeal as it relates to the February 24 order denying his motion to modify or reduce his sentence is barred for untimeliness.

III.

Even if Defendant could somehow overcome his deficient filing, his challenge to the district court‘s February 24 order would fail on the merits. We review a district court‘s denial of a motion to modify or reduce a sentence for abuse of discretion. United States v. Osborn, 679 F.3d 1193, 1195 (10th Cir.2012). Nothing indicates that the district court abused its discretion. Given Defendant‘s criminal history and his lenient plea agreement, the court‘s decision not to reduce his sentence appears justified.

The Supreme Court has fashioned a two-step inquiry that district courts must follow when considering a defendant‘s motion under § 3582(c)(2). Dillon v. United States, 560 U.S. 817, 826-27 (2010). First, the district court must determine that the defendant is eligible for a reduction. Id. at 827. Second, the district court must “consider any applicable § 3553(a) factors” and determine whether the defendant should actually receive a reduction in light of “the particular circumstances of the case.” Id.

Defendant collapses these two steps and asserts that he “should have been granted the reduсtion in sentence because he fell within the criteria of [Amendment 782].” This is not the case. The Government itself concedes Defendant is eligible under Amendment 782 for a reduced sentence, but eligibility alone does not mandate relief under § 3582(c)(2). United States v. Mueller, 27 F.3d 494, 497 n. 5 (10th Cir.1994). Instead, a district court‘s authority to reduce a sentence is entirely disсretionary. Id.

The district court weighed the particular circumstances of Defendant‘s case pursuant to the § 3553(a) factors and felt that a reduced sentence was not appropriate. Although the district court did not explicitly outline each factor in its February 24 order, the court‘s remarks at the initial sentencing hearing explaining its decision to upwardly vary Defendant‘s sentence shed light on this decision. Specifically, the court found that Defendant was “a killer, . . . a malingerer, . . . [and] a recidivist crack dealer“; that, as a result, any sentence it imposed would merely be “an interruption in [Defendant‘s] criminal career“; and, most significantly, that “the law does not significantly restrain [Defendant‘s] conduct.” Given this was the eighteenth time by a “conservative count” Defendant had been criminally prosecuted, the district court‘s reasons for the upward variance—that is, the need for “deterrence” and “to prevent [Defendаnt] from continuing [his] criminal career“—were well-founded. And if the upward variance was well-founded, surely the district court‘s decision to deny Defendant‘s § 3582(c)(2) motion to reduce his sentence was equally justified, especially since Defendant had received a shorter sentence by entering into a plea agreement. Cf. Freeman v. United States, 564 U.S. 522, 534 (2011) (“If the district court . . . concludes the [plea] agreement led to a more ‍‌‌‌​​‌​‌‌​​‌‌‌‌​​​​‌​‌​​​​​‌‌​​‌​‌‌‌​‌​​‌​​‌​​‌​‍lenient sentence than would otherwise have been imposed, it can deny the [§ 3582(c)(2)] motion.“). Accordingly, the district court did not abuse its discretion in denying Defendant‘s request to modify his sentence.

IV.

We now assume in the alternative that Dеfendant intended to appeal the district court‘s May 7 order denying his motion to reconsider. A criminal defendant‘s motion to reconsider his request to reduce his sentence is, like the initial motion itself, a continuation of the prior criminal proceeding. See Randall, 666 F.3d at 1241-42. Consequently, Rule 4(b)(1)(A) also applies to such a motion, аnd any notice of appeal must be filed within fourteen days of the entry of the district court‘s order. Although the Government has not addressed this aspect of Defendant‘s notice of appeal as it relates to the district court‘s May 7 order, we have the authority to do so sua sponte. Mitchell, 518 F.3d at 751.

Doing so now, we nоte that although Defendant‘s May 22 filing of his notice of appeal—a filing that exceeded the fourteen-day requirement by one day—makes it appear he did not satisfy Rule 4(b)(1)(A), the prison mailbox rule as codified in Fed. R.App. P. 4(c)(1) saves him from an untimely appeal. This rule states that an incarcerated prisoner‘s “notice [of appeal] is timely if it is deposited in the institution‘s internal mail system on or before the last day of filing.” Fed. R.App. P. 4(c)(1). Defendant placed his notice of appeal into the prison‘s legal mail system on May 21, exactly fourteen days after entry of the district court‘s May 7 order. His appeal is therefore not time-barred, and we review the district court‘s deniаl of his motion to reconsider for abuse of discretion. Randall, 666 F.3d at 1241.2

Criminal defendants may move for reconsideration, but they must do so within specified time limits. Randall, 666 F.3d at 1242-43. We elaborated on these time limits in United States v. Randall, where we held that “a motion to reconsider an order granting or denying a sentence modification under § 3582(c)(2) must be brought within the time granted to appeal that order.” Id. at 1243. Thus, even if a defendant has filed his notice of appeal within the proper time limit, the defendant must have previously brought his motion to reconsider to the district court within the equivalent time limit if he is to be in harmony with timeliness requirements. See id.

Defendant had fourteen days to bring his notice of appeal once the district court denied his motion to reconsider, supra, so he likewise only had fourteen days from the date of the district court‘s denial of his motion under § 3582(c)(2) to bring his motion to reconsider. ‍‌‌‌​​‌​‌‌​​‌‌‌‌​​​​‌​‌​​​​​‌‌​​‌​‌‌‌​‌​​‌​​‌​​‌​‍The district court denied his § 3582(c)(2) motion on February 24. Thus, Defendant had until March 10 to bring his motion to reconsider. He did not actually file his “letter-motion” until April 9, nеarly a month after the filing deadline. The district court was therefore correct and did not abuse its discretion in denying the motion to reconsider as untimely filed.

Accordingly, Defendant‘s motion to proceed in forma pauperis is granted, and the judgment of the district court is AFFIRMED.

BOBBY R. BALDOCK

UNITED STATES CIRCUIT JUDGE

Notes

1
Namely, we have discretion when the government has not challenged the timeliness of the defendant‘s notice of appeal in its response brief, the court has raised the issue of untimeliness sua sponte, or the district court has extended the filing period pursuant to Fed. R.App. P. 4(b)(4). See United States v. Randall, 666 F.3d 1238, 1241 & n. 5 (10th Cir.2011); United States v. Mitchell, 518 F.3d 740, 750-51 (10th Cir.2008); Fed. R.App. P. 4(b)(4).
2
Ms. Smith did not file a reply brief to argue that we should apply the interests-of-justice exception to the firm waiver rule. See Soliz v. Chater, 82 F.3d 373, 376 (10th Cir.1996) (recognizing the interests-of-justice exception to the firm waiver rule). Therefore, we do not address the exception. We clarify that Defendant‘s alleged use of the prison‘s legal mail system shields him from Rule 4(c)(1)‘s requirement that inmates using the prison‘s regular mail system provide a notarized statement or declaration under penalty of perjury of the date on which their notice of appeal was given to prison authorities. See Fed. R.App. P. 4(c)(1); United States v. Ceballos-Martinez, 387 F.3d 1140, 1144-45 (10th Cir.2004). We are cognizant, however, that this exemption from notarization or declaration may stand on shaky ground. See Price v. Philpot, 420 F.3d 1158, 1166 n. 7 (10th Cir.2005) (arguing that the Ceballos-Martinez rule is actually dicta and future cases may hold that even prisoners using the legal ‍‌‌‌​​‌​‌‌​​‌‌‌‌​​​​‌​‌​​​​​‌‌​​‌​‌‌‌​‌​​‌​​‌​​‌​‍mail system must satisfy the notarization/declaration requirement). If the Ceballos-Martinez rule is in fact faulty in this regard, the prison mailbox rule would nоt protect Defendant from his day-late filing since there is no indication that he attempted to prove his date of deposit by notarization or declaration. Nevertheless, we would still utilize our discretion to analyze the merits of Defendant‘s appeal from the May 7 order regardless of the application of the prison mailbox rule. See Randall, 666 F.3d at 1241. Defendant‘s filing was late by a mere day, and he is acting pro se without the aid of an attorney to help him file his claims. Taking these circumstances in their entirety, we would not be “wast[ing] judicial resources were we to reach the merits” of Defendant‘s appeal, especially since we raised sua sponte the timeliness of Defendant‘s notice of appeal in regard to the May 7 order. Mitchell, 518 F.3d at 751.
*
After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.
**
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, fоr its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
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