Fernando Rodriguez appeals from judgment of conviction entered in the United States District Court for the Southern District of New York, Thomas P. Griesa, J. Appellant pled guilty to possession, with intent to distribute, of 14 kilograms of cocaine and was sentenced to 10 years in prison. Appellant contends that government's notice of appeal in earlier phase of case was untimely, and that district court was thus prevented from imposing sentence appellant now attacks. Affirmed.
Lumbard, Feinberg and Meskill, Circuit Judges.
Defendant Fernando Rodriguez appeals from a judgment of conviction, dated June 15, 1989 in the United States District Court for the Southern District of New York, Thomas P. Griesa, J. Rodriguez pled guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841, and was sentenced to ten years in prison. Rodriguez appeals, contending, among other things, that the government's notice of appeal in an earlier phase of this case was untimely. According to Rodriguez, this prevented the district court from imposing the sentence he now claims is a nullity. We affirm.
To understand Rodriguez's argument on appeal, it is necessary to know the timing of certain events in the district court. Thus, we spell out in detail the complicated procedural history of this case.
Following his arrest, Rodriguez engaged in plea negotiations with the government. Rodriguez's offense occurred in April 1988, well after November 1, 1987, the effective date of the new Sentencing Guidelines under the Sentencing Reform Act of 1984, which we shall refer to collectively as "the new law." The district judge, however, had held the Sentencing Guidelines unconstitutional, and it became clear that he intended to sentence Rodriguez under the statutes in effect prior to the new law, which we shall call "the old law."
A key difference between the old law and the new law concerned the rate at which a prisoner can earn "good time," i.e., credit against the length of the sentence by good conduct. Under the old law, a person serving a 10-year sentence could earn good time at the rate of 10 days a month, or 120 days a year, for a total of 1,200 days over 10 years. Under the new law, see 18 U.S.C. § 3624(b), a prisoner could earn no good time until after he had served a year, and could earn no more than 54 days of good time a year, for a total of 486 days over 10 years.
This disparity was obviously significant for Rodriguez. Before he formally pled guilty, he moved in the district court for a ruling that he would be sentenced under the good time provisions of the old law. The basis of the motion was that the Sentencing Guidelines, which the judge had already held unconstitutional, were not severable from other provisions of the Sentencing Reform Act, including the new, restrictive good time provisions. The government opposed this position, and asked the judge to rule that the good time provisions of the new law applied even if he declined to sentence Rodriguez under the Sentencing Guidelines.
In a written opinion, dated October 11, 1988, the judge held that the Sentencing Guidelines and the good time provisions of the Sentencing Reform Act were non-severable and that Rodriguez would be sentenced "in all respects" under the old law. Thereafter, on October 26, 1988, Rodriguez pled guilty to possession, with intent to distribute, of 14 kilograms of cocaine the preceding April. On January 10, 1989, the judge sentenced Rodriguez to ten years in prison, which was the minimum mandatory sentence under the old law for the offense. The judgment of conviction was actually entered in the criminal docket on January 13, 1989, and we shall refer to the judgment hereafter by that date.
On January 18, 1989, the United States Supreme Court decided Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989), which held the Sentencing Guidelines constitutional. Shortly thereafter, on February 9, 1989, the government moved in the district court for reconsideration of Rodriguez's sentence under the old law in light of Mistretta.
On March 6, 1989, however--before the district court had ruled on the government's motion for reconsideration--the government sent a letter to the district court withdrawing the motion. The government stated that it had "upon review, determined that the better course is to appeal the sentence and obtain a remand." It asked the district court, under Federal Rule of Appellate Procedure (F.R.A.P.) 4(b), to extend its time for appeal, presumably under the provision that allows an extension for a period "not to exceed 30 days," upon a showing of "excusable neglect."
The district court granted the motion and extended the time to appeal to March 15, 1989. On the same day, it endorsed the government's motion for reconsideration with the words "[motion] denied as withdrawn. So ordered." Also on the same day, the government filed its notice of appeal.
In April 1989, while its appeal was pending, the government moved in this court for remand to the district court for resentencing under the new law in light of Mistretta. We granted the motion on consent in May 1988. After remand, on June 15, 1989, the district court resentenced Rodriguez, this time under the new law, and again sentenced him to ten years in prison. It also made ...