Rule 35(a)’s Time Limits on Correcting Sentencing Error Held to Be Jurisdictional

The defendant in United States v. Higgs, No. 06-3738 (filed October 4, 2007), was sentenced January 5, 2005, one week before the Supreme Court decided United States v. Booker,543 U.S. 220 (2005) , on June 12, 2005. His judgment was not entered until June 14, 2005. On that same day, rather than filing a direct appeal to the Third Circuit, the defense counsel moved for a reduction of his sentence under Rule 35(a), noting in an attached affidavit that Booker made the guidelines advisory.
Rule 35(a) provides, "Correcting Clear Error. Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error."
On January 24, 2005, the District Court conducted a telephone conference on the motion, at which Higgs was not present. The court set forth reasons explaining why the originally imposed 156 month sentence was reasonable in light of Booker. No briefs had been filed by defense counsel, no hearing was held, and again, the defendant was not present.
In a letter dated February 3, 2005, defense counsel informed the District Court that Higgs had heard of the District Court’s denial and wanted to appeal. The District Court did not receive Higgs’ hand-written notice of appeal until months later. The Third Circuit had previously remanded this case to the District Court to determine whether counsel’s letter should be construed as a notice of appeal. The District Court granted Higgs’ motion "for leave to appeal the Court’s order denying his motion for reconsideration of sentence nunc pro tunc . . . ."
In this appeal, the Third Circuit examined the plain language of Rule 35 as well as its history and purpose and concluded that its time limits are jurisdictional . Rule 35(a) requires that any correction for "clear error" be made "[w]ithin 7 days after sentencing." Sentencing is defined as "the oral announcement of the sentence" (and not the entry of judgment). Counsel’s motion was filed on the 7th day. But the rule applies to the district court’s action.
The Advisory Committee notes explain that the authority of the district courts to correct a sentence was intended to be very narrow and to extend only to cases in which an obvious arithmetical, technical or other clear error occurred. It was not to serve as a means of collateral attack.
The Advisory Committee further noted that the "stringent time requirement" of seven days was shorter than the time for appealing the sentence to enable the defendant to file a timely appeal if he chose do so.
Thus, the District Court was without jurisdiction to enter its January 24, 2005 order. But because Higgs did not directly appeal the entry of judgment, but instead appealed the order denying his Rule 35(a) motion , the Third Circuit did not remand for resentencing. Instead, the Court vacated the district court’s January 24, 2005 order, left the judgment and sentence intact, and dismissed the appeal.
In a footnote, the Court leaves upon the question whether Higgs’ counsel’s decision to file a Rule 35 motion, rather than directly appealing Higgs’ sentence, gives rise to a valid ineffective assistance of counsel claim under 18 U.S.C. § 2255.