United States v. Frias, No. 06-5381 (2d Cir. 2008)
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06-5381-cr United States v. Frias 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Submitted: January 22, 2008 Decided: March 31, 2008) 5 Docket No. 06-5381-cr 6 ------------------------------------- 7 United States of America, 8 Appellee, 9 - v - 10 Octavio Frias, 11 Defendant-Appellant. 12 ------------------------------------- 13 Before: 14 CARDAMONE, SACK, and KATZMANN, Circuit Judges. Appeal by the defendant pro se from an amended judgment 15 of conviction in the United States District Court for the 16 Southern District of New York (John F. Keenan, Judge) for 17 conspiracy to commit murder in violation of 21 U.S.C. 18 § 848(e)(1)(A) in connection with a narcotics offense punishable 19 under 21 U.S.C. § 841(b)(1)(A), reimposing a sentence of life 20 imprisonment after Booker remand. 21 asserts insufficiency of the indictment, erroneous jury 22 instructions, and various sentencing errors. 23 raises no objection to the untimeliness of the defendant's notice 24 of appeal. 25 Affirmed. On appeal, the defendant The government 1 Octavio Frias, Lewisburg, PA, pro se. 2 3 4 5 6 Michael J. Garcia, United States Attorney for the Southern District of New York, Joshua A. Goldberg, Celeste L. Koeleveld, Assistant United States Attorneys, New York, NY, for Appellee. 7 SACK, Circuit Judge: 8 Defendant Octavio Frias appeals pro se from an amended 9 judgment of conviction in the United States District Court for 10 the Southern District of New York (John F. Keenan, Judge) for 11 conspiracy to commit murder in violation of 21 U.S.C. 12 § 848(e)(1)(A) in connection with a narcotics offense punishable 13 under 21 U.S.C. § 841(b)(1)(A), which reimposes a sentence of 14 life imprisonment after Booker remand. 15 objection to the untimeliness of the defendant's notice of 16 appeal. 17 The government raises no We are called upon to decide whether Federal Rule of 18 Appellate Procedure 4(b), which governs the time to appeal from a 19 criminal judgment, requires us to dismiss sua sponte an untimely 20 appeal. 21 jurisdictional and are therefore capable of forfeiture by the 22 government. 23 therefore affirm his conviction and sentence. 24 25 We conclude that the time limits of Rule 4(b) are not Frias's appeal nonetheless lacks merit. We I. On January 2, 2003, the defendant, Octavio Frias, was 26 charged by superseding indictment with one count of committing 27 murder while engaged in a conspiracy to distribute and possess 28 with intent to distribute more than one kilogram of heroin and 2 1 more than five kilograms of cocaine. Viewed in the light most 2 favorable to the government, the evidence at trial established 3 that Frias assisted in a large-scale narcotics and gambling 4 operation run by Roberto Martinez-Martinez, a/k/a "Papito," and 5 Mario Lobo, a/k/a "Alberto Cruz." 6 threatened the narcotics business, Martinez-Martinez decided to 7 have Lobo killed. 8 gunmen, pointed out Lobo for them on the night of the murder, and 9 paid their travel expenses when the job was successfully When Lobo's gambling losses Frias made all the arrangements: he hired 10 completed. 11 guilty. 12 to a term of life imprisonment.1 13 On March 12, 2003, the jury returned a verdict of On July 1, 2004, the court sentenced Frias principally Frias appealed. We summarily affirmed his conviction 14 but remanded for resentencing in light of United States v. 15 Booker, 543 U.S. 220 (2005). 16 4106-cr, slip op. at 3 (2d Cir. Sept. 28, 2005) ("Frias I"). 17 January 4, 2006, the district court, having conducted sentencing 18 proceedings anew pursuant to our remand, entered an amended 19 judgment again imposing a life sentence. 20 United States v. Frias, No. 04On On September 28, 2006, proceeding pro se, Frias filed a 21 notice of appeal. In his brief on appeal, Frias asserts 22 insufficiency of the indictment, erroneous jury instructions, and 23 various sentencing errors. Frias also concedes that his appeal 1 Judge Allen G. Schwartz, who presided at trial, passed away shortly thereafter. The case was then reassigned to Judge Keenan for sentencing. 3 1 is untimely, stating that his attorney refused to file an appeal 2 on his behalf after resentencing. 3 responds to each of Frias's claims but makes no mention of the 4 appeal's untimeliness. 5 The government's brief II. 6 We consider sua sponte our subject-matter jurisdiction 7 over this appeal, "as we are obliged to do [irrespective of 8 whether either party raises the issue] when it is questionable." 9 Henrietta D. v. Giuliani, 246 F.3d 176, 179 (2d Cir. 2001). 10 Here, Frias concedes that his notice of appeal was untimely but 11 the government has not asked us to dismiss his appeal for that 12 reason. 13 We have stated that the time limits prescribed by 14 Federal Rule of Appellate Procedure 4(b), which governs the time 15 to appeal from a criminal judgment, are jurisdictional, barring 16 us from adjudicating the merits of an untimely appeal.2 2 Rule 4(b) states, in relevant part: (1) Time for Filing a Notice of Appeal. (A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of: (I) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal. ... (4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may - before or after the time has expired, with or without motion and 4 See 1 United States v. Fuller, 332 F.3d 60, 64 (2d Cir. 2003) (although 2 it was undisputed, treating failure to comply with time limits in 3 Rule 4(b) as jurisdictional); United States v. Ferraro, 992 F.2d 4 10, 11 (2d Cir. 1993) (per curiam) ("[T]he requirement of a 5 timely notice of appeal in rule 4(b) is jurisdictional."). 6 recently, however, we have noted that a series of Supreme Court 7 decisions has "called into question" our previous statements 8 regarding the jurisdictional nature of Rule 4(b). 9 v. Moreno-Rivera, 472 F.3d 49, 50 n.2 (2d Cir. 2006) (per More United States 10 curiam). 11 not jurisdictional and that we may therefore consider Frias's 12 appeal on its merits.3 13 As explained below, we now conclude that Rule 4(b) is In Kontrick v. Ryan, 540 U.S. 443 (2004), the Supreme 14 Court held that Rule 4004 of the Federal Rules of Bankruptcy 15 Procedure, which sets a 60-day time limit on the right of a 16 creditor to file a complaint objecting to a debtor's discharge, 17 is not jurisdictional. 18 determine a lower federal court's subject-matter jurisdiction," Id. at 447. Because "[o]nly Congress may notice - extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b). 3 "[W]e are bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court." United States v. Brutus, 505 F.3d 80, 87 n.5 (2d Cir. 2007) (internal quotation marks and citation omitted). Although we conclude that the prior rulings of this Court on this issue have been effectively overruled by the Supreme Court in the cited cases, we have nonetheless taken the precaution of circulating this opinion to all active members of this court before filing. See id. 5 1 id. at 452, the Court reasoned that time limits and filing 2 deadlines originating only in the Bankruptcy Rules, and not in 3 the United States Code, "are claim-processing rules that do not 4 delineate what cases bankruptcy courts are competent to 5 adjudicate," id. at 454. 6 sometimes misused the term "jurisdictional" to describe claim- 7 processing rules that are mandatory or inflexible. 8 55. Id. at 454- The distinction is important, however, because 9 10 11 12 13 14 15 16 17 The Court acknowledged that it had [c]haracteristically, a court's subjectmatter jurisdiction cannot be expanded to account for the parties' litigation conduct; a claim-processing rule, on the other hand, even if unalterable on a party's application, can nonetheless be forfeited if the party asserting the rule waits too long to raise the point. Id. at 456. 18 The Supreme Court revisited questions of subject-matter 19 jurisdiction in Eberhart v. United States, 546 U.S. 12 (2005) 20 (per curiam), and Bowles v. Russell, 127 S. Ct. 2360 (2007). 21 Eberhart, the Court held that Federal Rule of Criminal Procedure 22 33(a), which sets a seven-day deadline for filing a motion for 23 new trial, was virtually indistinguishable from Bankruptcy Rule 24 4004 and was therefore not jurisdictional. 25 15-16, 19. 26 Rule of Appellate Procedure 4(a), which governs the time to 27 appeal in a civil case, is jurisdictional. 28 2366. 29 30 In Eberhart, 546 U.S. at In Bowles, by contrast, the Court held that Federal Bowles, 127 S. Ct. at Bowles highlighted "the jurisdictional distinction between court-promulgated rules and limits enacted by Congress." 6 1 Id. at 2365. 2 33(a), the Court explained, the time limit in Appellate Rule 4(a) 3 is derived from a federal statute, 28 U.S.C. § 2107(a), which 4 requires parties to file notices of appeal within 30 days of the 5 entry of the judgment.4 6 limit was statutory, the Court reasoned, it was properly 7 construed as jurisdictional. 8 9 Unlike Bankruptcy Rule 4004 and Criminal Rule Id. at 2363-65. Because the 30-day Id. at 2365. The Bowles Court addressed the jurisdictional status of Rule 4(a), which provides the time limit for appealing from a 10 civil judgment. 11 time for appealing in a criminal case. 12 circuits, applying the principles announced in Kontrick, have 13 concluded that Rule 4(b), unlike Rule 4(a), is not 14 jurisdictional. 15 1288 (10th Cir. 2007); United States v. Martinez, 496 F.3d 387, 16 388 (5th Cir.) (per curiam), cert. denied, 128 S. Ct. 728 (2007); 17 United States v. Sadler, 480 F.3d 932, 934 (9th Cir. 2007). 18 share their view. 19 It was not called upon to discuss Rule 4(b), the Several of our sister See United States v. Garduño, 506 F.3d 1287, We As noted, critical to the Supreme Court's decisions in 20 Kontrick and Bowles were the facts that Appellate Rule 4(a)'s 21 origin is statutory whereas Bankruptcy Rule 4004's is not. 22 Bowles, 127 S. Ct. at 2364-65; Kontrick, 540 U.S. at 452-54; see 4 See Section 2107(a) provides, "Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree." 28 U.S.C. § 2107(a). 7 1 also Grullon v. Mukasey, 509 F.3d 107, 112 (2d Cir. 2007) 2 ("Bowles emphasized repeatedly that its reasoning was based on 3 the statutory origin of the limitation . . . ."). 4 axiomatic'" that court-prescribed rules of practice and 5 procedure, as opposed to statutory time limits, "'do not create 6 or withdraw federal jurisdiction.'" 7 (brackets omitted) (quoting Owen Equip. & Erection Co. v. Kroger, 8 437 U.S. 365, 370 (1978)). 9 Rule 4004, is not based on a statutory prescription. "'It is Kontrick, 540 U.S. at 452 Appellate Rule 4(b), like Bankruptcy As the 10 historical and statutory notes to 28 U.S.C. § 2107 indicate, the 11 time to file a notice of appeal in both civil and criminal cases 12 was governed by a single statute until 1948, when Congress 13 amended it to cover only civil actions. 14 1948, ch. 646, § 2107, 62 Stat. 869, 963 (codified as amended at 15 28 U.S.C. § 2107). 16 set forth in Federal Rule of Criminal Procedure 37(a), and is now 17 covered by Federal Rule of Appellate Procedure 4(b). 18 U.S.C. § 3732. 19 therefore, is set forth only in a court-prescribed rule of 20 appellate procedure. 21 grounded in any federal statute. 22 1290; Martinez, 496 F.3d at 388; Sadler, 480 F.3d at 938. 23 therefore does not withdraw federal jurisdiction over criminal 24 appeals. 25 26 See Act of June 25, For criminal cases, the time limit was then See 18 The time to appeal a criminal judgment, Rule 4(b), unlike Rule 4(a), is not Accord Garduño, 506 F.3d at It United States v. Robinson, 361 U.S. 220 (1960), does not require us to conclude otherwise. 8 Although Robinson, a 1 criminal case, states that "the taking of an appeal within the 2 prescribed time is mandatory and jurisdictional," id. at 229, the 3 Supreme Court subsequently cited Robinson "as an example of when 4 [it had] been 'less than meticulous' in [its] use of the word 5 'jurisdictional.'" 6 540 U.S. at 454). 7 government moved to dismiss the defendants' appeals as untimely. 8 Robinson, 361 U.S. at 221. 9 10 11 12 13 14 15 16 Eberhart, 546 U.S. at 18 (quoting Kontrick, And in Robinson, unlike in this case, the As the Court explained in Eberhart: Robinson is correct not because the District Court lacked subject-matter jurisdiction, but because district courts must observe the clear limits of the Rules . . . when they are properly invoked. This does not mean that [time] limits . . . are not forfeitable when they are not properly invoked. 546 U.S. at 17 (italics in original). 17 Our determination that Rule 4(b) is not jurisdictional, 18 then, does not authorize courts to disregard it when it is 19 raised. 20 of a defendant's criminal appeal, Rule 4(b) is mandatory and 21 inflexible. 22 F.3d at 50 n.2; see also United States v. Singletary, 471 F.3d 23 193, 196 (D.C. Cir. 2006).5 24 invoked, does not deprive us of subject-matter jurisdiction over 25 the appeal. 26 facilitated if courts and litigants used the label 27 'jurisdictional' not for claim-processing rules, but only for 5 When the government properly objects to the untimeliness See Eberhart, 546 U.S. at 17-18; Moreno-Rivera, 472 But Rule 4(b), even when properly See Kontrick, 540 U.S. at 455 ("Clarity would be We need not decide whether a court may, in its discretion, dismiss sua sponte an untimely appeal even when the government fails to invoke Rule 4(b). 9 1 prescriptions delineating the classes of cases (subject-matter 2 jurisdiction) and the persons (personal jurisdiction) falling 3 within a court's adjudicatory authority."). 4 the government forfeits an objection to the untimeliness of a 5 defendant's appeal by failing to raise it, we act within our 6 jurisdiction when we decide to consider the appeal as though it 7 were timely filed. 8 And where, as here, III. 9 Having considered at the outset, as we are required to 10 do, whether we have jurisdiction, we proceed to consideration of 11 the appeal on its merits. 12 to relief. 13 We conclude that Frias is not entitled First, we reject Frias's challenges to the jury 14 instructions used at his trial, the district court's Sentencing 15 Guidelines calculations, and the findings of fact underlying 16 those calculations. 17 exception of the issue of sentencing post-Booker, we resolved the 18 merits of his appeal in Frias I. 19 The scope of this second appeal is limited by the "law of the 20 case" doctrine. 21 22 23 24 25 26 27 28 29 30 31 32 This is Frias's second appeal. With the See Frias I, slip op. at 2-3. The law of the case ordinarily forecloses relitigation of issues expressly or impliedly decided by the appellate court. And where an issue was ripe for review at the time of an initial appeal but was nonetheless foregone, it is considered waived and the law of the case doctrine bars the district court on remand and an appellate court in a subsequent appeal from reopening such issues unless the mandate can reasonably be understood as permitting it to do so. . . . For similar reasons, . . . the law of the case ordinarily 10 1 2 3 4 5 prohibits a party, upon resentencing or an appeal from that resentencing, from raising issues that he or she waived by not litigating them at the time of the initial sentencing. 6 United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002) 7 (internal quotation marks, citations, and footnote omitted), 8 cert. denied sub nom. Donato v. United States, 539 U.S. 902 9 (2003). 10 Because we affirmed Frias's conviction in Frias I, 11 Frias cannot now claim error in the jury instructions. 12 remand was limited to resentencing in light of United States v. 13 Booker, 543 U.S. 220 (2005), which declared the Sentencing 14 Guidelines advisory. 15 challenge to the district court's Sentencing Guidelines 16 calculations or to the findings of fact underlying those 17 calculations. 18 76 (2d Cir. 2007), cert. denied, 128 S. Ct. 881 (2008); 19 Quintieri, 306 F.3d at 1229.6 20 Our Therefore, we will not consider Frias's See United States v. Williams, 475 F.3d 468, 475- We will, however, examine Frias's challenge to the 21 sufficiency of the indictment insofar as he asserts that it 22 "fails to invoke the court's jurisdiction or to state an 6 The law of the case doctrine admits of certain exceptions - for example, when the appellant did not previously have an incentive or opportunity to raise the issue; when the issue arises from events that occurred after the original appeal; or in light of other "cogent and compelling reasons such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Quintieri, 306 F.3d at 1230 (internal quotation marks and citation omitted). Those exceptions do not apply here. 11 1 offense." The Federal Rules of Criminal Procedure provide that 2 such a challenge may be heard "at any time while the case is 3 pending." 4 however, when a challenge is urged for the first time on appeal, 5 indictments and informations are construed more liberally and 6 every intendment is then indulged in support of the sufficiency." 7 United States v. Davila, 461 F.3d 298, 308 (2d Cir. 2006) 8 (internal quotation marks, citation, and ellipsis omitted), cert. 9 denied, 127 S. Ct. 1485 (2007). Fed. R. Crim. P. 12(b)(3)(B). "At the same time, Typically, to state an offense, 10 an indictment "need only track the language of the statute and, 11 if necessary to apprise the defendant of the nature of the 12 accusation against him, state time and place in approximate 13 terms." 14 (internal quotation marks, citation, and ellipsis omitted), cert. 15 denied, 537 U.S. 936 (2002). 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 United States v. Flaharty, 295 F.3d 182, 198 (2d Cir.) The grand jury charged Frias with violating 21 U.S.C. § 848(e)(1)(A), which provides in relevant part as follows: [A]ny person . . . engaging in an offense punishable under section 841(b)(1)(A) of this title . . . who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death. The indictment against Frias charges: On or about September 21, 1991, in the Southern District of New York, while engaged in an offense punishable under Section 841(b)(1)(A) of Title 21, United States Code, namely, a conspiracy to distribute and 12 1 2 3 4 5 6 7 8 9 10 possess with intent to distribute one kilogram and more of heroin and five kilograms and more of cocaine, OCTAVIO FRIAS, the defendant, and others known and unknown, unlawfully, intentionally, and knowingly killed, counseled, commanded, induced, procured and caused the intentional killing of Mario Lobo, a/k/a, "Alberto Cruz," in a restaurant located at 1490 St. Nicholas Avenue in Manhattan. 11 United States v. Frias, No. 01 Cr. 307, Superseding Indictment, 12 dated January 2, 2003. 13 language of the statute and states the time and place of the 14 alleged murder. 15 district court's jurisdiction and to state an offense. 16 The indictment plainly tracks the It was therefore sufficient to invoke the Last, we conclude that the district court's sentence on 17 remand was reasonable. 18 court is required to consider, among other things, "the need to 19 avoid unwarranted sentence disparities among defendants with 20 similar records who have been found guilty of similar conduct." 21 18 U.S.C. § 3553(a)(6); see Kimbrough v. United States, 128 S. 22 Ct. 558, 574 (2007). 23 unreasonable because he received a life sentence whereas his co- 24 defendant, Martinez-Martinez, was equally culpable and received a 25 sentence of only 25 years.7 26 have held that section 3553(a)(6) requires a district court to 27 consider nationwide sentence disparities, but does not require a 7 In imposing a sentence, the district Frias argues that his sentence was This argument is unavailing. We We note that Frias preserved this issue below but did not raise it on appeal until he filed a reply brief. We exercise our discretion to consider the claim because it was fully briefed and argued before the district court and because the government addressed generally the reasonableness of Frias's sentence in its own brief on appeal. 13 1 district court to consider disparities between co-defendants. 2 United States v. Wills, 476 F.3d 103, 109-11 (2d Cir. 2007).8 3 any event, Frias and Martinez-Martinez are not similarly 4 situated. 5 Martinez-Martinez pleaded guilty to two counts that carried a 6 statutory maximum sentence of 25 years, whereas Frias's offense 7 of conviction carries a statutory range of 20 years to life and a 8 Guidelines sentence of life. 9 cases, a Guidelines sentence will fall comfortably within the In One highly relevant difference between them is that "[I]n the overwhelming majority of 10 broad range of sentences that would be reasonable . . . ." 11 United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.), cert. 12 denied, 127 S. Ct. 192 (2006). 13 of life imprisonment for conspiracy to commit murder in violation 14 of 21 U.S.C. § 848(e)(1)(A) in connection with a narcotics 15 offense punishable under 21 U.S.C. § 841(b)(1)(A) falls 16 comfortably within that range. 17 * * * 18 19 We conclude that Frias's sentence For the foregoing reasons, the amended judgment of the district court is affirmed. 8 "We do not, as a general matter, object to district courts' consideration of similarities and differences among co-defendants when imposing a sentence." Wills, 476 F.3d at 110. 14
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