Barragan-Mendoza

I. Overview

Gabriel Barragan-Mendoza (Barragan) pleaded guilty to unlawful possession with intent to distribute cocaine and unlawful distribution of cocaine and was sentenced. After the government filed a motion to reconsider that sentence, the district court held an evidentiary hearing and entered an amended judgment increasing Barragan’s sentence. Barragan contends on appeal that the district court was without jurisdiction to amend his sentence because the court failed to act within the seven-day time period afforded by Fed.R.Crim.P. 35(c) for correcting an erroneous sentence. We agree. Accordingly, the amended sentence is vacated, and the cause is remanded to the district court for imposition of the original sentence.

II. Background

Following his guilty plea, Barragan was sentenced on May 29, 1997 to a term of twenty-seven months. This sentence represented a substantial downward departure from the sixty-month minimum sentence mandated by 21 U.S.C. § 841 (B). The court premised this downward departure on U.S.S.G. § 5K2.13, which it believed provided authority to depart from the statutory minimum because of Barra-gan’s “diminished mental capacity.”

On June 3, 1997, five days…

dissenting:

I respectfully dissent from the majority’s assertion of jurisdiction over this appeal.

Defendant filed his Notice of Appeal on August 18,1997. In that Notice of Appeal, he challenged the sentence that the district court had imposed on July 31, 1997; the judgment embodying that challenged sentence was entered on August 1, 1997. We lack jurisdiction to consider the appeal, because it was not filed within the time required by Rule 4(b) of the Federal Rules of Appellate Procedure. See United States v. Green, 89 F.3d 657, 660 (9th Cir.1996) (compliance with the time limit of *1031 Rule 4(b) is mandatory and jurisdictional). Rule 4(b) gave defendant ten days from August 1, 1997, within which to appeal, but he filed his notice several days too late.

Rule 4(b) of the Federal Rules of Appellate Procedure provides:

(Emphasis added.)

Three key points are clear from reading the text of Rule 4(b). First, Rule 4(b) unequivocally states the general rule that a defendant must file an appeal within 10 days after the entry of judgment. The majority acknowledges both that general rule and defendant’s failure to meet it. Second, Rule 4(b)(3) provides a list of motions whose filing…