Appellate Decisions

Extending the Time for Appealing First Step Act Denials

A split Seventh Circuit held that a motion to reconsider First Step Act relief extends the time for appealing.

June 25, 2020

By Bryan Lammon

In United States v. Rutherford, a divided Seventh Circuit held that a motion to reconsider the denial of First Step Act relief extended the time for filing a notice of appeal. The majority concluded that these motions were common law motions to reconsider. And common law motions to reconsider in criminal cases extend the time for appealing; the motion makes the judgment non-final, and the judgment becomes final only after the district court resolves the motion. Dissenting, Judge Barrett contended that the motion for reconsideration was one under Federal Rule of Criminal Procedure 35. And Rule 35 motions to not extend the time for appealing.

Judge Barrett ended her dissent by pointing out that the court’s decision was non-precedential. So the Seventh Circuit might have to reckon with this issue again.

First Step Act Denials and Motions to Reconsider

The defendant in Rutherford had pleaded guilty to several drug crimes. He eventually moved to have his sentence reduced under the First Step Act, which allows courts to reduce certain drug sentences in accordance with the Fair Sentencing Act. The district court denied that motion. Before the time for appealing that denial had passed, the defendant asked the district court to reconsider. The district court declined, and the defendant filed his notice of appeal shortly thereafter.

The government argued that the appeal was untimely. It contended that motions to reconsider sentences “are ineffectual and do not extend the time for appeal.” In so arguing, the government relied on the Seventh Circuit’s decision in United States v. Townsend, which held that motions to reconsider a sentence within two weeks of its imposition are necessarily motions under Rule 35. Under Federal Rule of Appellate Procedure 4(b)(5), Rule 35 motions do not affect the time for filing a notice of appeal. The government contended that the motion in Rutherford was a Rule 35 motion. That made his appeal late.

The Majority: Motions to Reconsider First Step Act Relief Extend the Appeal Deadline

The Seventh Circuit rejected this argument and held that motions to reconsider First Step Act relief extend the time for appealing. Rule 35 does not govern motions under the First Step Act. So a motion to reconsider First Step Act relief was a common law motion to reconsider. And the Supreme Court has generally held that motions to reconsider in criminal cases extend the time for taking an appeal. The motion suspends the finality of the judgment and postpones the time to appeal until after the district court decides the motion. In United States v. Rollins, the Seventh Circuit had synthesized the Supreme Court’s cases into the general rule that “all motions to reconsider appealable orders in criminal cases extend the time for appeal until they have been resolved by the district court.” (Appellate Rule 4(b)(5)’s express provisions for Rule 35 motions supersede this general common law rule.)

Judge Barrett’s Dissent: Motions to Reconsider First Step Act Relief Are Rule 35 Motions

Judge Barrett dissented on this point. As she saw things, common law motions to reconsider applied only to convictions, not sentences. The Sentencing Reform Act had abrogated common law power governing sentencing. So a motion to reconsider First Step Act relief must come from somewhere other than the common law. The First Step Act itself does not authorize motions to reconsider. All that’s left is Criminal Rule 35. And Rule 35 motions do not extend the time for filing a notice of appeal.

Judge Barrett also pointed out that Rutherford was a non-precedential opinion. So Rutherford might not be the last word on this matter.

Also of Note: Reconsideration Is Not a Successive Motion

One other point worth mentioning. The majority and dissent agreed that a motion to reconsider First Step Act relief was not a successive motion. The Act forbids successive motions to reduce a sentence under the Act. Analogizing to the Supreme Court’s recent decision in Banister v. Davis, the Seventh Circuit held that a motion to reconsider does not violate this prohibition. The motion to reconsider is part of the original proceeding, aimed at producing a correct decision in that proceeding, and not a successive motion.

On the merits, the Seventh Circuit affirmed the denial of First Step Act relief.

United States v. Rutherford, 2020 WL 3428965 (7th Cir. June 23, 2020), available at the Seventh Circuit and Westlaw.

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