Defendant Herbie Noel appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (Frederic Block,
Judge)
on two counts of possession of marijuana with intent to distribute, for each of which defendant was principally sentenced to 60 months’ imprisonment, and one count of conspiracy to possess with intent to distribute marijuana, for which he was sentenced principally to 110 months’ imprisonment, all sentences to run concurrently. The indictment did not charge, nor did the jury find, either the quantity of marijuana involved in any of the counts or whether the defendant received any remuneration in connection therewith. Defendant’s appeal presents two important questions arising from the Supreme Court’s landmark decision in
Apprendi v. New Jersey,
BACKGROUND
Defendant Noel was an employee of the Port Authority of New York and New Jersey (the “Port Authority”), which has primary responsibility for the operation of the three major airports serving New York City, including John F. Kennedy Airport (“JFK”). Defendant worked for the Port Authority at JFK, and by virtue of his position with the Port Authority he had access to certain restricted areas of the airport, including areas from which luggage arriving on international flights could be retrieved without subjecting it to scrutiny by the United States Customs Service. The government alleged that defendant used this position to smuggle shipments of narcotics into the United States.
Defendant was prosecuted pursuant to a superseding indictment, dated September 11, 1995, which charged him with six counts, to all of which he pled not guilty: one count of conspiracy to distribute and to possess with intent to distribute cocaine; two counts of attempting to possess with intent to distribute cocaine; one count of conspiracy to distribute and to possess with intent to distribute marijuana; and two counts of distribution and possession with intent to distribute marijuana. Defendant was acquitted after a jury trial on the three cocaine-related counts; this appeal concerns, and reference will be made, only to the remaining three marijuana-related counts. None of the counts alleged any quantity of marijuana involved in the offenses nor any fact related to remuneration. However, the parenthetical statutory references following each count referenced specific penalty provisions: on the conspiracy count, § 841(b)(l)(B)(vii) (the five-to-forty-year provision for offenses involving 100 kilograms or more of marijuana), and on the two distribution/possession counts, § 841(b)(1)(D) (the five-year maximum provision for less than 50 kilograms of marijuana).
Trial commenced on November 7, 1995. The government’s case was based largely on the testimony of two cooperating defendants, Rodney Smith and Donald Gordon, both of whom were baggage handlers employed by Triangle Aviation Services. Both men testified to several occasions between 1990 and their arrest in 1994 when allegedly they retrieved suitcases full of marijuana at JFK, bypassed Customs, and delivered the suitcases to Noel in exchange for payment. The government introduced corroborating evidence in the form of phone and pager records detailing various phone calls and pages among the defendants. Smith and Gordon were arrested after an undercover agent arranged with them to recover shipments of cocaine at JFK in a like manner, and they implicated Noel in both the cocaine and marijuana shipments.
The jury returned verdicts of guilty on the marijuana counts on November 22, 1995. The defendant did not request, and the jury was not charged, to determine the amount of marijuana involved in any of the offenses.
Prior to sentencing, defendant expressed his dissatisfaction with his trial attorney and acquired new counsel. At sentencing on January 10, 1997, defendant contested not only the evidence of the quantity of marijuana involved in the conspiracy but also the standard to be applied, arguing that at least as to uncharged conduct the court should apply a higher standard than preponderance of the evidence, *627 given the significant effect it could have on the overall sentence. (Sent. Tr. 5-6.) Although the district court (and, indeed, defense counsel) recognized that this argument had largely been rejected by this circuit, 1 the district court erred on the side of caution and found beyond a reasonable doubt that the conspiracy involved at least 189.6 kilograms of marijuana, resulting in a base offense level of 26 under U.S.S.G. § 2D1.1. (Sent. Tr. 28-29.) (The district court found the two substantive counts involved 25.8 and 20 kilograms, respectively.) Applying a four-level enhancement for the defendant’s supervisory role under U.S.S.G. § 3Bl.l(a), the district court sentenced the defendant principally to 110 months’ imprisonment — slightly above the midpoint of the applicable Guideline range. 2 The district court also imposed a $60,000 fíne. Judgment was entered on February 19, 1997, and defendant filed a notice of appeal that same day.
On April 8, 1997, defense counsel filed a motion in this Court requesting a 60-day extension of time in which to file defendant’s initial brief (which was due on April 17). The moving papers stated the reason for seeking the extension as the difficulty appellate counsel had in obtaining the case file from trial counsel, but also stated as follows:
Additionally, the Appellant anticipates filing a motion in the District Court pursuant to 28 U.S.C. Sec. 2255 within the next few weeks. Granting the requested enlargement of time would enable us to determine whether this case can be resolved through such a motion in the District Court. In the event the Sec. 2255 motion is denied, a consolidated appeal would be the most expeditious manner in which to resolve all issues in this case. That would be possible by granting the requested 60 day enlargement of time.
The supporting affidavit of appellate counsel stated further that
[i]t is our view that, in the event we are not successful in the trial court on the § 2255 petition, the most efficient and expeditious course of action in this case would be a consolidation of the direct appeal with the appeal from a denial of the § 2255 petition, thereby enabling all issues to be resolved one way or the other in one forum at one time. Obviously, if we are successful with the § 2255 motion, we would move to dismiss the appeal and we would not need to burden this Court.
We plan to file Mr. Noel’s § 2255 petition within the next four weeks. The issues involved are not complex and we should be able to arrive at a resolution of the issues within a short time frame. Indeed, it is our hope that we can resolve those issues within a time frame that would enable us to meet the *628 briefing schedule as extended pursuant to this motion. In the event we are not successful with the § 2255 petition, we would immediately move to consolidate the appeal.
This Court granted defendant a 30-day extension on April 11, 1997. The order granting the extension contained a handwritten notation by a staff attorney of the Court that “[pjarties could stipulate to withdraw appeal pending resolution of sec. 2255 motion.”
On May 14, 1997, the Court received from defendant a stipulation which stated that the appeal would be “removed from the docket.” On May 28, defendant’s counsel wrote to the Court to “confirm” a telephone conversation he had apparently had with a representative of the Clerk of the Court. According to defense counsel’s letter, the Clerk’s office had informed him that the stipulation needed to state that the appeal was being “withdrawn,” and that theD stipulation required the defendant’s signature authorizing the withdrawal. In the letter, counsel authorized the Court to alter the stipulation to read “withdrawn,” assured the Court that a statement of authorization from defendant would be forthcoming shortly, and also stated that
As we discussed, and as the stipulation provides, the point is that we have agreed to stay the appeal pending a resolution before the trial court of a motion under 28 U.S.C. § 2255, with the idea that a consolidated appeal would better serve the interests in judicial economy. So, while we are withdrawing the appeal now, it is with the right to reinstate it, if necessary, following a decision by the trial court on Mr. Noel’s petition.
No letter of approval from defendant was forthcoming, however, and on June 16, 1997, this Court ordered the defective stipulation stricken from the docket for failure to comply with the signature requirement of Fed. R.App. P. 42(b) and then dismissed the appeal for failure of defendant to file his appellant’s brief within the extended time allotted. The letter was accompanied by directions from the Clerk stating that, if it had been the defendant’s intention to withdraw the appeal, a signed stipulation along with a request to reinstate the appeal and a motion to file out of time were required to be submitted within twenty days. On June 24, 1997, defense counsel wrote to a staff attorney of this Court detailing his efforts to obtain defendant’s signature and explaining that difficulty with the prison mail system had caused the delay. The letter also asked the staff attorney to “please advise as to the procedure for removing the default and reinstating the appeal so that we can have it withdrawn instead pursuant to our Stipulation, with leave to prosecute the appeal, if necessary, after we litigate the § 2255 motion in the district court.” On July 9,1997, defendant filed a motion to reinstate his appeal and for permission to file a withdrawal stipulation out of time; on July 11, this Court granted the motion “only to the extent that the appeal is reinstated.”
This Court received from defendant a revised stipulation to withdraw his appeal, executed by all parties, on July 28, 1997. The stipulation stated, in its entirety, as follows:
IT IS HEREBY STIPULATED by and between the parties, subject to the approval of the Court, that the appeal of Herbie Noel be withdrawn upon the following conditions:
1. that within 10 days of notice of the decision of the District Court on appellant’s 28 U.S.C. § 2255 motion, appellant shall move to restore this appeal to the calendar; and
2. that within fourteen (14) days of said restoring of the appeal to the calen *629 dar, appellant’s brief and appendix shall be served on appellee and filed with the Court.
The stipulation was signed for the Court by a staff attorney and filed on July 30, 1997.
Despite defense counsel’s representations that a § 2255 motion would be filed “within a few weeks” and his professed hope that the resolution of that motion might even precede completion of briefing of the appeal, defendant did not file his § 2255 motion until some two and one-half years later, on December 1, 1999. The district court denied both the motion and, sua sponte, a Certificate of Appealability (“COA”), on August 4, 2000; the order denying the motion was entered on the district court docket sheet on August 8 along with a notation that copies were mailed to counsel by Judge Block’s chambers. Subsequently, on August 21, the clerk of this Court received a letter from defendant’s counsel, dated August 18, which stated as follows:
On July 30, 1997, as to Appellant Her-bie (Wayne) Noel, the above-referenced appeal was suspended and held in abeyance pending the prosecution of a motion in the district court under 28 U.S.C. § 2255 in the case. I have just received notice by mail that on August 4, 2000, the district judge entered an order denying Mr. Noel’s motion under § 2255. Accordingly, the appeal is now due to be reinstated and a briefing schedule can now be set for the direct appeal.
It is not clear to me exactly how to proceed most efficiently. The purpose of the suspension of the appeal was to allow all of the issues to be consolidated in one vehicle to avoid excess litigation. However, it would appear that Mr. Noel will need to file a separate notice of appeal within 60 days of August 4, 2000, and pursue the certificate of appealability process as to the § 2255 motion (the district court denied a certificate of ap-pealability as part of the order, thereby making the matter ripe for Mr. Noel to seek the certificate from this Court); while this direct appeal is ready to proceed. I would appreciate any thoughts on the matter. If they can still be consolidated that would seem to be helpful all around, although I cannot, of course, speak for government counsel.
A reinstatement order was issued by the clerk of this Court on September 19, 2000, which stated that “[a]n order withdrawing the appeal of defendant-appellant, HER-BIE NOEL, having been entered on 7/30/97 and the counsel for the defendant-appellant having filed the necessary papers, upon consideration thereof; it is ORDERED that the appeal be, and it hereby is reinstated.” The remainder of the procedural history before this Court is of no significance to this appeal.
DISCUSSION
I. Appellate Jurisdiction
We first address two issues of this Court’s jurisdiction. The first question— which we raise
sua sponte
in furtherance of our obligation to assess our own jurisdiction at the outset of every appeal,
see Goldberg v. Cablevision Sys. Corp.,
A. The Direct Appeal
Our
concern over
our jurisdiction on the direct appeal arises from the fact that, on its face, we have a voluntary withdrawal of an appeal by defendant followed by a request to “reinstate” the appeal some three and one-half years after entry
*630
of the judgment appealed from — well beyond the ten days for appeal allowed by Fed. R.App. P. 4(b). Were this any other issue besides the timeliness of the appeal, we might ignore this apparent procedural irregularity and proceed directly to the merits, on the ground that any procedural error — if indeed there was any — was implicitly both invited and approved by this Court. However, not only are the time limits of Fed. R.App. P. 4 “mandatory and jurisdictional,”
United States ex rel. McAllan v. City of New York,
We begin by noting that we approved the procedure followed here — withdrawal of a direct appeal of a conviction followed by “reinstatement” of the appeal upon the district court’s decision on a § 2255 motion directed to that conviction — in
United States v. Hernandez,
We conclude that we have jurisdiction to consider Hernandez’s claim that the district court improperly denied his suppression motion. Hernandez timely filed his notice of appeal for his direct appeal. We granted his motion for withdrawal of his direct appeal without prejudice, and he complied with our instructions for reinstatement of his appeal. Therefore, the suppression issue is properly before us.
Id. (footnote omitted). We did not, however, further explain the basis for our jurisdiction, nor, apparently, was any question of the consistency of this practice with Fed. R.App. P. 4 brought to our attention. The power of this Court to reinstate a voluntarily withdrawn appeal at any time — a power perhaps conditioned on compliance with certain prerequisites (e.g., *631 a time period within which to request reinstatement) 4 — seems to have been assumed.
We need not test that assumption here because, despite its label, the stipulation “withdrawing” the appeal was not, in fact, a withdrawal. In determining the proper procedural treatment of a paper filed with the Court, we have consistently eschewed reliance on the denomination given it by a party in favor of examining its purpose or function.
See McAllan,
A withdrawal of an appeal is an expression of the intent of the parties (principally, of course, the appellant) not to pursue the appeal any further and brings the appeal to an end. 5 Defendant here, however, clearly never intended to abandon his direct appeal. Indeed, he initially requested an extension of time to file briefs — effectively holding the appeal in abeyance — pending the § 2255 motion, and he submitted the stipulation that the appeal be “withdrawn” apparently only because of the suggestion of a staff attorney that he do so and, more importantly, the refusal of the clerk’s office to accept anything else. Defendant’s correspondence with this Court continually referred to the direct appeal as being in “suspension” or “abeyance.” Moreover, there is no indication that the government or this Court understood this to be the end of the appeal. We, therefore, will consider the stipulation of withdrawal filed with and signed by this Court as a motion to hold the appeal in abeyance and a grant of that motion — a power we unquestionably have under the Federal Rules of Appellate Procedure. 6 Thus, the jurisdiction over the direct appeal which vested in this Court upon defendant’s filing of the notice of *632 appeal in February 1997 has remained with this Court throughout. 7
Finally, this construction of our own jurisdiction does not call into question the district court’s adjudication of the § 2255 motion, because there is no
jurisdictional
bar to a district court’s adjudication of a § 2255 motion during the pendency of a direct appeal.
See DeRango v. United States,
B. The § 2255 Motion
The government nonetheless contends that we have no jurisdiction to review the district court’s denial of defendant’s § 2255 motion because (1) defendant filed no notice of appeal from the denial order and (2) no COA was granted, as required by 28 U.S.C. § 2253. We disagree with the government on the first point but concur on the second.
We start by noting that we specifically held in
Hernandez
that a notice of appeal is required to bring the denial of a defendant’s § 2255 motion before this Court; defendant cannot rely on our jurisdiction over the direct appeal.
See Hernandez,
It is undisputed that defendant filed no formal notice of appeal with the
*633
district court from the denial of his § 2255 motion. The inquiry does not, however, end there; we must determine whether he filed any paper which can be reasonably construed as the “functional equivalent” of a notice of appeal.
Id.; Haugen v. Nassau County Dep’t of Social Servs.,
We find that the August 18 letter from defense counsel requesting reinstatement of the direct appeal suffices as a notice of appeal from the denial of defendant’s § 2255 motion as well. The letter was, first of all, timely, having been received by this Court within sixty days of the date on which the order appealed from was entered on the district court docket sheet.
8
The reinstatement letter’s discussion of how best to consolidate an appeal of the § 2255 motion with the direct appeal specifies the party, order, and court involved in the appeal; the only question is whether it sufficiently evinces a definite intent to appeal. There would be little reason for defendant’s counsel question as to how to consolidate the appeals if there were to be nothing to consolidate — i.e., no appeal on the § 2255 motion. We have previously held that intent to appeal may be inferred from a letter questioning how to proceed with an appeal.
See Grune v. Coughlin,
Our jurisdictional inquiry has one more step, however, and that is defendant’s failure to secure a COA, as required
*634
by 28 U.S.C. § 2253(c). The district court denied a COA and defendant presented no request for a COA to this Court as permitted by Fed. R.App. P. 22(b). Having construed the August 18 letter as a notice of appeal, however, we will also construe it as a request for a COA.
See
Fed. R.App. P. 22(b)(2) (“If no express request for a cer-tifícate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.”);
Hooper v. United States,
II. The Constitutionality of 21 U.S.C. § 81pl After Apprendi
We now turn to the merits of defendant’s direct appeal. Defendant attacks his convictions and sentence based on the intervening Supreme Court decision in
Apprendi,
benefit of which defendant receives because his conviction is still under direct review.
See Griffith v. Kentucky,
Defendant’s first claim of error is that
Apprendi
renders 21 U.S.C. § 841 (and therefore § 846 as well) unconstitutional on its face, and therefore his
convictions,
not merely his sentence, must be vacated. We join every other circuit to have addressed this argument in rejecting it.
See United States v. Collazo-Aponte,
The defendant in
Apprendi
was convicted of possession of a firearm with an unlawful purpose, a second-degree offense punishable under New Jersey law by a maximum of ten years’ imprisonment. At sentencing, the trial judge applied a sentencing enhancement statute under New Jersey law which provided that, if the trial judge found by a preponderance of the evidence that a crime was motivated by racial bias, the maximum penalty for a second-degree offense was twenty years.
Apprendi,
We applied the teachings of Apprendi to 21 U.S.C. § 841 in Thomas. With respect to controlled substances, § 841 contains two subparts: § 841(a), entitled “Unlawful acts,” which outlaws certain actions (manufacture, possession with intent to distribute, distribution, etc.) involving those substances; and § 841(b), entitled “Penalties,” which lays out the terms of imprisonment which may be imposed for the unlawful acts of subsection (a). The ranges of possible prison terms increase in tiers from zero-to-twenty years through ten-years-to-life, depending on the quantity of controlled substance involved in the offense— the threshold quantity for each tier varying -with the type of controlled substance involved. 11 (The variation from this scheme for marijuana will be discussed in more detail below.) In Thomas, we concluded that “if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury.” Id. at 660. Because Thomas’s sentence of 292 months exceeded the statutory maximum for an indeterminate amount of cocaine — namely, 240 months under 21 U.S.C. § 841(b)(1)(C) — and was based on a quantity of cocaine neither charged in the indictment nor proven to a jury beyond a reasonable doubt, we found constitutional error under Appi'endi and vacated for re-sentencing to 240 months. Id. at 673.
Defendant’s facial challenge to the constitutionality of § 841 is as follows: First, in light of Apprendi, it is no longer permissible to construe the threshold drug quantities of § 841(b) as “sentencing factors” to be determined by a judge rather than jury. Clearly, in light of Thomas, we agree with the opening premise. Second, defendant urges, if drug quantities are elements of offenses, then § 841(a) “is a disjointed criminal statute, which prescribes no penalty and which, therefore cannot constitutionally serve as the basis for a criminal conviction, in that it does not create a crime as a matter of law.” We part company with defendant on this proposition.
First, as we made clear in
Thomas,
drug quantity becomes an “element of the offense” under § 841 only where “the type and quantity of drugs involved ... may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs.”
Second, we see no constitutional problem presented by the government’s charging drug quantities that support penalties greater than those of the provisions relating to indeterminate amounts — i.e., those instances where drug quantities become elements of the offense. True, in such a situation § 841(a) no longer presents the
entire
offense; one element of the crime (drug quantity) is to be found in § 841(b) instead. Defendant offers, however, no persuasive reason why subsection (a) must stand alone, and we see none. We agree with the Seventh Circuit in
Brough
that “[i]t makes no constitutional difference whether a single subsection covers both elements and penalties, whether these are divided across multiple subsections (as § 841 does), or even whether they are scattered across multiple statutes.”
Brough,
To the extent that defendant is arguing that we cannot reconcile a construction of § 841 which requires drug quantity to be an offense element with Congress’s intent to make drug quantity a sentencing factor, we reject the argument. Simply put, Congress has expressed no such intent. It is true that we had previously held drug quantity to be a sentencing factor to be found by the judge,
see, e.g., United States v. Campuzano,
III. The Marijuana Sentencing Provisions of 21 U.S.C. § 81pl
Defendant’s second claim of error below is that the district court sentenced him on each count to greater than the statutory maximum for offenses involving an indeterminate amount of marijuana. Because no quantity of marijuana was charged in the indictment, nor was drug quantity submitted to the jury, such a sentence would be error under Apprendi and Thomas. 12 As alluded to above, while 21 U.S.C. § 841(b)(1)(C) provides the “default provision,” as it were, for most controlled substances, the question of just what the “statutory maximum for an indeterminate amount” of marijuana is somewhat more difficult.
There are five provisions in § 841(b) relating to marijuana:
*637 1) § 841(b)(l)(A)(vü) provides for a term of imprisonment of 10 years to life imprisonment for a violation of § 841(a) involving 1000 kilograms or more of marijuana; 13
2) § 841(b)(1) (B) (vii) provides for a term of imprisonment of 5 to 40 years for a violation involving 100 kilograms or more;
3) § 841(b)(1)(C) provides, “except as provided in subparagraphs (A), (B), and (D),” for a term of imprisonment of up to 20 years for a violation involving any Schedule I or II controlled substance; 14
4) § 841(b)(1)(D) provides for a penalty of up to 5 years for a violation involving less than 50 kilograms of marijuana, “except as provided in paragraphs (4) and (5) of this subsection”; and
5) § 841(b)(4) provides that “[n]ot-withstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marijuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.”
Section 844 of Title 21 covers offenses involving simple possession and provides for a maximum imprisonment of 1 year.
Defendant argues that, absent an indictment and jury finding with respect to quantity, the maximum allowable sentence is one year under § 841(b)(4). The government argues, on the other hand, that the appropriate “default provision” is five years under § 841(b)(1)(D). 15 We agree with the government.
We believe that Congress intended that § 841(b)(4) be a mitigating exception to the five-year provision of § 841(b)(1)(D). First, as indicated by the introductory phrase of § 841(b)(4) (“Notwithstanding paragraph (1)(D) of this subsection”), distribution of a small amount of marijuana for no remuneration is an activity prohibited by § 841(a) and covered by the penalty provisions of § 841(b)(1)(D), and therefore represents an exception to an otherwise applicable penalty. Second, there is reason to consider the activity mostly contemplated by § 841(b)(4)— namely, the sharing of small amounts of marijuana in social situations — to be not just one of lesser degree than those covered by (b)(1)(D) but of a different type more akin to simple possession than to provisions intended to cover traffickers. 16 The legislative history of this amendment suggests that Congress took exactly this view. See, e.g., Cong. Rec. 35,555 (Oct. 7, 1970) (statement of Sen. Hughes) (“[trafficking provisions should apply to the large *638 distributor, rather than to the person who is only using the drug with his friends.”).
Apprendi,
however, specifically noted and reaffirmed the distinction between “facts in aggravation of punishment and facts in mitigation.”
Apprendi,
Fundamentally, we believe defendant’s mistake is to misread
Apprendi
not for what it actually says but for the way it has been applied. That is, defendant argues, paraphrasing
United States v. Lowe,
This methodology, despite its surface appeal, is nowhere to be found in
Apprendi. Apprendi
stated that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Applying this test to the competing positions in this case, it is clear that § 841(b)(1)(D), not (b)(4), is the “baseline” *639 provision, because the latter requires at least one fact — namely, absence of remuneration — not required by the former. Because this additional fact does not “increase the penalty for a crime beyond the prescribed statutory maximum,” it need not be treated as an offense element. The statutory maximum for an indeterminate amount of marijuana, therefore, is the five-year provision of § 841(b)(1)(D).
TV. Substantial Rights
Because we have determined that the statutory maximum penalty for an indeterminate amount of marijuana under § 841(b) is five years, there is no error with respect to defendant’s sixty (60) month sentences on the two possession counts. Defendant’s sentence on the conspiracy count of 110 months is unconstitutional, however, in light of
Apprendi
Moreover, this error is “plain.”
See Thomas,
Under our “modified plain-error rule,” applied where, as here, “the source of plain error is a supervening decision,” the government, not the defendant, bears the burden to demonstrate that the error did not affect substantial rights — i.e., that the error was harmless.
See United States v. Monteleone,
We reject defendant’s contention that, because at this point he has already served more than sixty months in prison, our holding that the maximum allowable sentence on the conspiracy count is sixty months should lead to his immediate release — in other words, that the district court should not be allowed to alter the concurrent running of the sentences. We rejected a similar argument in
United States v. Triestman,
*641 CONCLUSION
We reject defendant’s challenge to § 841’s constitutionality and hold that the “default” provision for marijuana is the five-year term of § 841(b)(1)(d). Further, we find that defendant’s sentence on the conspiracy count, though in excess of this five-year statutory maximum, did not affect defendant’s substantial rights because it did not lengthen his overall term of imprisonment. We therefore affirm the convictions and sentences.
Construing defendant’s August 18, 2000 letter to this Court as a notice of appeal from the denial of his § 2255 motion as well as a motion for a certificate of appeal-ability, we deny the motion for failure to make a substantial showing of the denial of a constitutional right, and we dismiss the appeal for lack of jurisdiction.
Notes
. In
United States v. Gigante,
. Defendant fell within Criminal History Category I, resulting in a Guideline range of 97 to 121 months.
. We assume for these purposes that defendant's request to reinstate this appeal complied with the terms of the stipulation of withdrawal, i.e., that he "moved to restore this appeal” "within 10 days of notice of the decision of the District Court on appellant’s 28 U.S.C. § 2255 motion.” We note, however, that this is so only by giving defendant the benefit of several assumptions: (1) that counsel's letter did service as a "motion,” despite its failure to comply with Fed. R.App. P. 27; (2) that the otherwise ambiguous term "notice” means "service of notice” rather than actual notice (which defense counsel has never stated to this Court, by affidavit or otherwise); (3) that the district court served notice of the order of denial on the date of entry of the order (August 8) rather than the date Judge Block signed it (August 4) — even though the docket noted that copies were mailed to counsel by chambers, not by the clerk; and (4) that the three-day extension of time for mailing under Fed. R.App. P. 26(c) is applicable. We take this opportunity to caution counsel that basing a time limit in a stipulation on an undefined and indefinite term such as "notice” not only invites pointless collateral litigation over whether the terms of the stipulation have been met but risks adverse consequences should a court not accept counsel's assumptions. It is, of course, in part to eliminate uncertainty that the Federal Rules of Appellate Procedure specify that the critical time to appeal runs from "entry” of the judgment or order appealed from. See Fed. R.App. P. 4.
. We say "perhaps” because one possible reading of the quoted portion of Hernandez is that we treated compliance with the terms of the withdrawal stipulation as a jurisdictional prerequisite.
. Thus, for example, "a notice of appeal filed and dismissed voluntarily is gone, no more effective in conferring jurisdiction on a court than a notice never filed.”
Barrow v. Falck,
. Holding an appeal "in abeyance” in this case (as in most) amounted to nothing more than an extension of time for filing of the appellant's brief. Courts of appeal are expressly allowed to extend any time limit except for, as noted above, the time to file a notice of appeal. Fed. R.App. P. 26(b).
We note that by holding the appeal in abeyance pending the resolution of the § 2255 motion, the one-year limitations period prescribed by AEDPA never began (indeed has not yet begun) to run. The effect of that abeyance, coupled with the inexplicably long period of time which defendant took to file his § 2255 motion, enabled defendant to bring his § 2255 motion some two and one-half years after his conviction — probably, although by no means certainly, later than he would have been able to had the appeal proceeded forthwith. Our concern in this case, however, is only with our jurisdiction; the wisdom, in light of AEDPA, of granting a request to hold an appeal in abeyance pending the filing of a § 2255 motion is a question to be considered as those requests arise in the future. Whether to condition such a stay, if granted, on the expeditious filing of a proposed motion would undoubtedly be part of any future consideration of this issue.
Cf. Zarvela v. Artuz,
. Without expressing any opinion on or limiting the basis for our holding in Hernandez, we note that the construction we apply here would suffice equally well to support our finding of jurisdiction in that case.
. Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts specifies that the time limits for appeal from a § 2255 motion are governed by the provisions of Fed. R.App. P. 4(a) respecting civil appeals, not the criminal provisions of Rule 4(b).
The fact the letter was filed with this Court, rather than the district court, is not fatal to the appeal.
See
Fed. R.App. P. 4(d) (notice of appeal filed with court of appeals is "considered filed in the district court on the date” received in the court of appeals);
Smith,
. This result is in no way inconsistent with
Hernandez.
The defendant there, in requesting to reinstate his direct appeal, made no reference to appealing the denial of his § 2255 motion other than to attach a copy of the denial order to his letter.
Hernandez,
. The district court denied defendant’s § 2255 motion principally because, "in light of the abundance of evidence against him, Noel cannot show that but for his counsel’s allegedly flawed representation, there is a reasonable probability that the result would have been different.” Order of Aug. 4, 2000, at 2.
. Thus, for example, a prohibited offense involving an undetermined amount of cocaine results in a prison term of zero to twenty years, § 841(b)(1)(C); one involving 500 grams or more results in a term of five to forty years, § 841(b)(l)(B)(ii); and one involving 5 kilograms or more results in a term of ten years to life imprisonment, § 841 (b)( 1 )(A)(ii). The threshold quantities under §§ 841(b)(1)(A) and (B) for crack cocaine, on the other hand, are 5 grams and 50 grams, respectively. §§ 84l(b)(l)(A)(iii) and (B)(iii).
. As noted above, the district court did determine the quantity on defendant’s conspiracy conviction beyond a reasonable doubt.
. The prescribed range of penalties in § 841(b)(1) increases based on the presence of either or both of two additional facts, neither of which is applicable in this case: (1) death or serious bodily injury results from use of the controlled substance involved, or (2) the defendant has prior felony drug convictions.
. Marijuana is a Schedule I controlled substance. See 21 U.S.C. § 812(c).
. The government has not asked to us to consider § 841(b)(1)(C) to be applicable to a conviction involving an indeterminate amount of marijuana. We therefore do not address the issue although — purely as a matter of statutory construction — we are inclined to believe that Congress intended that § 841(b)(1)(C) be read as providing the penalties for offenses involving not less than 50 kilograms of marijuana while (b)(1)(D) applies to indeterminate quantities.
.By contrast, offenses involving 50 kilograms of marijuana may represent a lesser magnitude of societal harm than those involving 100 or 1000 kilograms but it would be difficult to argue that they are of a fundamentally different type, hence another reason not to consider § 841(b)(1)(D) to represent a mitigating "exception” to the provisions of (b)(1)(C).
. With most other controlled substances— i.e., the ones for which the indeterminate-quantity provision of § 841(b)(1)(C) specifies the lowest penalty tier — these two methodologies yield the same result.
. Although in other cases the government has suggested that our modified plain-error rule is no longer good law in light of
Johnson v. United States,
. The Sentencing Guidelines provide that, except with respect to counts for which there is a statutorily prescribed term of imprisonment or which are required to be run consecutively to other counts, and except where doing so would exceed a statutory maximum, the sentence imposed on each count "shall be the total punishment” as determined by application of the Guidelines — in this case, 110 months. U.S.S.G. § 5G1.2(b); § 5Gl.l(a). The "stacking” provision provides that "if the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produced a combined sentence equal to the total punishment.” § 5G 1.2(d).
We have held that the application of § 5G1.2 is largely mandatory except that a district court has the discretion to depart from its provisions to run sentences concurrently "where the imposition of multiple stacked sentences based on similar conduct create[s] 'an aggravating or mitigating circumstance, of a kind or to a degree, not adequately taken into consideration by the Sentencing Commission.’"
United States v. White,