United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN UNITED STATES DISTRICT JUDGE
Court has before it defendant's motion to reconsider
[Doc. 396] and defendant's related motion for indicative
ruling [Doc. 394]. The government has responded [Doc. 394].
Defendant has not replied, and the time to do so has passed.
E.D.T.N. LR 7.1(a).
defendant correctly notes in her motion for indicative ruling
[Doc. 394 p. 1], because the Court's denial of
defendant's motion for compassionate release is now on
appeal in the Sixth Circuit [Id.], the Court lacks
jurisdiction to decide defendant's motion to reconsider.
Cochran v. Birkel, 651 F.2d 1219, 1221 (6th Cir.
1981) (“As a general rule the filing of a notice of
appeal divests the district court of jurisdiction and
transfers jurisdiction to the court of appeals.”). None
of the exceptions to this general divestiture of jurisdiction
apply to the instant motion to reconsider. See Williamson
v. Recovery Ltd. P'ship, 731 F.3d 608, 626 (6th Cir.
2013) (“This transfer of power, however, does not
effect a total divestiture of jurisdiction from the district
court: it retains jurisdiction to enforce its judgment, to
proceed with matters that will aid the appellate process, and
to adjudicate matters unrelated to the issues on
appeal.” (citations omitted)). While the Court may
consider the motion to reconsider under Federal Rule of
Criminal Procedure 37(a), the issue of the motion's
timeliness is a preliminary question. Fed. R. Crim. P. 37(a)
(“If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been
docketed and is pending, the court may: (1) defer considering
the motion; (2) deny the motion; or (3) state either that it
would grant the motion if the court of appeals remands for
that purpose or that the motion raises a substantial
issue.”); see also United States v. Alqsous,
No. 1:16-cr-329, 2019 WL 4736260, at *2 (N.D. Ohio Sept. 27,
2019) (“[B]efore deciding whether an indicative ruling
is warranted, the Court must determine whether Alqsous'
motion is timely.” (citing Fed. R. Crim. P. 37(a)).
as the government notes [Doc. 398 p. 2], defendant's
motion to reconsider was untimely. Motions to reconsider
denials of § 3582(c)(2) motions are subject to the same
fourteen-day deadline that applies to filing a notice of
appeal. See United States v. Wooley, No. 16-3925,
2017 WL 3613318, at *2 (6th Cir. Feb. 28, 2017) (upholding
district court's finding that defendant's motion to
reconsider order denying § 3582(c)(2) motion was
untimely where motion was not filed within fourteen-day
period for filing a notice of appeal); see also United
States v. Redd, 630 F.3d 649, 650 (7th Cir. 2011)
(“Only a motion filed within the time for appeal acts
as a genuine request for reconsideration.”), and
United States v. Randall, 666 F.3d 1238, 1243 (10th Cir.
2011) (similar). And, the Court sees no reason to distinguish
between a § 3582(c)(2) motion and a § 3582(c)(1)
motion as to the proper time for filing a motion to
reconsider. See United States v. Correa, 328 F.3d
297, 299 (6th Cir. 2003) (“[A]bsent a rule specifying a
different time limit, a petition for rehearing in a criminal
case would be considered timely when filed within the
original period for review.” (citing Browder v.
Dir., Dep't of Corr., 434 U.S. 257 (1978)); see
also United States v. Brown, 817 F.3d 486, 488 (6th Cir.
2016) (“A § 3582(c) motion ‘is not a civil
post-conviction action, but rather a continuation of a
criminal case, '” so “the fourteen-day
deadline for filing a notice of appeal in a criminal case
Court issued its memorandum and order denying defendant's
§ 3582(c)(1) motion on October 29, 2019, and defendant
filed her motion to reconsider on November 18, 2019.
Defendant should have filed her motion to reconsider on or
before November 12, 2019. Her filing was thus six (6) days
late. The motion to reconsider is therefore untimely.
the motion is untimely, Rule 37 does not apply, and the Court
lacks jurisdiction to decide the motion. The government
argues [Doc. 398 p. 3] that defendant's untimeliness
provides a basis for the Court to deny defendant's motion
to reconsider, but the Court finds that dismissal of the
motion is proper because it lacks jurisdiction to rule on the
motion. See United States v. Amado, 841 F.3d 867,
871 (10th Cir. 2016) (finding district court should have
dismissed, rather than denied, second § 3582(c)(2)
motion, construed as motion to reconsider and deemed to be
untimely under R. 37(a), because “[b]efore a district
court may exercise jurisdiction under Fed. R. Crim. P. 37-and
effectively sidestep the rule that a notice of appeal divests
it of jurisdiction as to matters pending on appeal-the motion
for relief must be timely.”).
the motion to reconsider [Doc. 396] is
DENIED. As the government suggests [Doc. 398
p. 3], this ruling renders moot defendant's motion for an
indicative ruling. Fed. R. Crim. P. 37(a); cf.
Alqsous, 2019 WL 4736260, at *2 (“Because Alqsous
has failed to identify the existence of newly discovered
evidence, his latest post-trial motion for a new trial is
untimely and he is not entitled to an indicative ruling under
Fed. R. Crim. P. 37.”). The motion for an indicative
ruling [Doc. 394] is DENIED as moot.
The Court notes that even if it did
have jurisdiction to decide the motion to reconsider, it
would deny the motion. Although the Federal Rules of Criminal
Procedure do not provide for motions to reconsider, courts
traditionally treat motions to reconsider in criminal cases
like motions in civil suits. United States v.
Rollins, 607 F.3d 500, 502 (7th Cir. 2010) (citing
United States v. Healy, 376 U.S. 75 (1964)).
Defendant does not cite an applicable rule, but “[a]
postjudgment motion will be construed under Rule 59(e) when
it ‘involves “reconsideration of matters properly
encompassed in a decision on the merits.”'”
Cont'l Cas. Co. v. Indian Head Indus., Inc., 941
F.3d 828, 833 (6th Cir. 2019) (citations omitted). The
court's denial of defendant's § 3582(c)(1)
motion represented a decision on the merits, so application
of Federal Rule of Civil Procedure 59(e) is proper, and
defendant satisfied the deadline for a 59(e) motion by filing
the motion to reconsider within twenty-eight (28) days of the
denial order. Fed.R.Civ.P. 59(e); see also supra p.
3. A party may move to “alter or amend a
judgment” under 59(e) on the basis of any of four
reasons: “(1) there was ‘a clear error of
law' in the judgment, (2) the movant has ‘newly
discovered evidence,' (3) there has been an
‘intervening change in controlling law,' or (4) the
alteration or amendment is needed ‘to prevent manifest
injustice.'” Cont'l Cas. Co., 941 F.3d
at 833. Defendant appears to argue that the Court made a
clear error of law in the judgment by relying improperly on
the length of time the defendant has served in denying the
motion for compassionate release [Doc. 396 p. 1]. However,
defendant misreads the Court's decision, which considered
the length of time served only as a barometer to measure
whether granting defendant early release would “reflect
the seriousness of the offense, promote respect for the law,
and provide just punishment”; these are relevant §
3553(a) factors, which the statute directs the Court to
consider “to the extent they are applicable.”
§ 18 U.S.C. § 3582(c)(1)(A). In addition to