U.S. v. Maddox

Full title: UNITED STATES of America, Appellee, v. Derrick MADDOX, Defendant-Appellant

Court: United States Court of Appeals, Second Circuit

Date published: Jan 14, 2010

361 F. App'x 172 (2d Cir. 2010)

Opinion

No. 08-4898-cr.

January 14, 2010.

Appeal from a judgment of the United States District Court for the Western District of New York (Larimer, J.).

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that, to the extent this appeal purports to challenge the district court's order of June 10, 2008, the appeal is DISMISSED as untimely; to the extent the appeal is from the district court's order of September 22, 2008, that order is AFFIRMED. We presume the parties' familiarity with the facts and issues on appeal.

Derrick Maddox, Fort Dix, N.J., pro se.

Kathleen M. Mehltretter, United States Attorney (Monica J. Richards, Assistant United States Attorney, of counsel, Lisa C. Chan, Law Student Intern, on the brief), Buffalo, N.Y., for Appellee.

PRESENT: WILFRED FEINBERG, ROBERT A. KATZMANN, Circuit Judges and T.S. ELLIS, III, District Judge.^_

_ The Honorable T.S. Ellis, III, of the United States District Court for the Eastern District of Virginia, sitting by designation.

SUMMARY ORDER

This Court must dismiss the portion of the appeal that challenges the district court's June 10, 2008 order denying Appellant's motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) because the notice of appeal was untimely filed with respect to that order and the Government has raised the issue in its brief. See United States v. Frias, 521 F.3d 229, 234 (2d Cir. 2008) ("When the government properly objects to the untimeliness of a defendant's criminal appeal, Rule 4(b) is mandatory and inflexible.").

Although the appeal is timely with respect to the district court's September 22, 2008 order denying reconsideration of the June 10, 2008 order, Appellant's challenge to that order is without merit.¹ Appellant's argument that the district court improperly denied his 18 U.S.C. § 3582(c)(2) motion based on a waiver of the right to file such a motion is unavailing. The district court did not deny his motion based on the waiver; rather, the district court denied the motion because Appellant had been sentenced pursuant to a Rule 11(c)(1)(C) plea agreement. Moreover, this Court has held that a defendant, such as Appellant, who was sentenced pursuant to a binding plea agreement made pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, is not entitled to a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Main, 579 F.3d 200, 202-03 (2d Cir. 2009).²

1 Because we have determined that the district court properly denied Appellant's motion for reconsideration, we need not determine whether that motion was timely filed in the district court. See United States v. Canova, 412 F.3d 331, 348 (2d Cir. 2005) (declining to consider a jurisdictional question not briefed by the parties because the record amply supported affirmance of the district court's disposition).

2 Judge Ellis wishes to acknowledge that this holding is contrary to his opinion in United States v. Dews, 551 F.3d 204 (4th Cir. 2008) (rehearing en banc granted February 20, 2009, rehearing en banc dismissed as moot May 4, 2009). Judge Ellis also recognizes that, sitting by designation on the Second Circuit, he is bound by this Circuit's controlling authority in Main.

Accordingly, for the foregoing reasons, this appeal is DISMISSED as untimely as to the district court's June 10, 2008 order, and the district court's September 22, 2008 order denying reconsideration is hereby AFFIRMED.