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Federal criminal defendant’s motion to reconsider his sentence did not toll the time to appeal

August 22, 2014 by in General

The defendant was sentenced on July 8, 2013, to 71 months in prison for possessing a firearm as a felon. Pursuant to Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, the deadline for filing a notice of appeal was July 22. That deadline is not jurisdictional but it is mandatory and must be enforced if the argument is not waived.

On July 17, the defendant filed a motion titled “Defendant Louis Townsend’s Motion to Reconsider His Sentence.” By statute, a motion for sentence modification must be brought under Rule 35 of the Federal Rules of Criminal Procedure. Motions under that rule don’t extend the time for filing an appeal. So the due date for the appeal remained unchanged notwithstanding the motion.

The court explained that there is no common law motion for reconsideration in connection with a criminal sentence in federal court. It noted that “a few unpublished orders from this circuit suggest that a common-law motion for reconsideration might be available in the sentencing context. * * * But unpublished decisions are not binding on subsequent panels.” Further, the court stated: “We disavow anything in our unpublished decisions suggesting that district courts retain common-law authority to reconsider a sentence.”

On July 19, the district court — which properly treated the motion as having been brought under Rule 35 — denied it as untimely. The defendant filed his notice of appeal on July 30. The government argued that the appeal was untimely. Because the appeal was eight days too late, the court of appeals dismissed it.

United States v. Townsend, 2014 WL 3906504 (7th Cir. Aug. 12, 2014).

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