United States of America, Plaintiff-appellee, v. Sharon D. Baskerville, Defendant-appellant, 983 F.2d 1057 (4th Cir. 1993)

OPINION

Sharon D. Baskerville appeals from the district court's order denying her second Motion for Reconsideration of an earlier order concerning a request for Rule 35(b)¹  relief. Fed. R. Crim. P. 35(b). Because the district court was without authority to consider Baskerville's motion, we affirm.

Baskerville pled guilty to one count of defrauding a federally insured financial institution in violation of 18 U.S.C.A. § 1344 (West Supp. 1992) (count (1)), and two counts of embezzling and misapplying funds of the institution while employed as a branch manager in violation of 18 U.S.C.A. § 657 (West 1976) (counts (2) and (3)). Counts (1) and (3) were subject to sentencing under the sentencing²  guidelines, while count (2) described a pre-guidelines offense. Baskerville was sentenced in October 1990 to fifty-seven months imprisonment on the guidelines offenses, and received a term of five years (the statutory maximum) on the pre-guidelines offense, in addition to supervised release and a special assessment.

On December 29, 1990, Baskerville filed an informal request for modification of her sentence. The district court construed her request as a motion under Rule 35, and partially granted the requested relief by changing the sentence imposed on the pre-guidelines offense to a sentence under 18 U.S.C.A. § 4205(b) (1) (West Supp. 1992) (repealed 1984),³  and by directing the parole commission to consider Baskerville eligible for parole upon completion of the sentences imposed in connection with the guidelines offenses. The Government then filed a timely motion for reconsideration, which resulted in the court's correction of its order to change the sentence imposed on count (2) from a sentence under § 4205(b) (1) to a sentence under⁴  § 4205(b) (2).

Twenty-one days later Baskerville filed a Motion for Reconsideration which the court denied for want of jurisdiction. Baskerville then filed another Motion for Reconsideration which the district court likewise denied, but not without purporting to retain jurisdiction to clarify its earlier orders for the parole commission's benefit. Baskerville then filed the present appeal.

This case is controlled by our decision in United States v. Breit, 754 F.2d 526, 530 (4th Cir. 1985), in which we held that an order disposing of a timely Rule 35(b) motion becomes final at the end of the 10-day appeal period, after which time the district court has no authority to reconsider or vacate its decision. Although the government's timely Motion for Reconsideration tolled the initial appeal period in this case, Baskerville's first and second Motions for Reconsideration were filed well beyond the 10-day appeal period following the district court's disposition of the government's motion, thus depriving the court of jurisdiction. Not only did the district court lack authority to consider Baskerville's Motions for Reconsideration, it also lacked authority, pursuant to Breit, to retain jurisdiction for purposes of clarifying its earlier orders.⁵  For these reasons, we affirm the district court's denial of Baskerville's second Motion for Reconsideration. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED