United States of America v. Antonio Donte Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO DONTE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:13-cr-00011-FDW-DCK-1)
Submitted: January 27, 2016 Decided: February 1, 2016
Before KING, WYNN, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded with
instructions by unpublished per curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North
Carolina, for Appellant. Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Antonio Donte Smith of Hobbs Act robbery
(Count 1), in violation of 18 U.S.C. § 1951 (2012); brandishing
a firearm during a crime of violence (Count 2), in violation of
18 U.S.C. § 924(c)(1)(A)(ii) (2012); and possession of a firearm
by a felon (Count 3), in violation of 18 U.S.C. § 922(g)(1)
(2012). At the first sentencing hearing, the district court
concluded that Smith did not qualify as an armed career
criminal, see 18 U.S.C. § 924(e) (2012), and sentenced him to
concurrent 63-month terms of imprisonment on Counts 1 and 3 plus
a consecutive 84-month term of imprisonment on Count 2, for a
total sentence of 147 months’ imprisonment. Before the district
court entered a written judgment, the Government moved for
reconsideration of the sentence under Fed. R. Crim. P. 35(a).
Seventy days after the original sentencing hearing, the district
court conducted a second hearing, classified Smith as an armed
career criminal, and sentenced him to concurrent 188-month terms
of imprisonment on Counts 1 and 3 plus a consecutive 84-month
term of imprisonment on Count 2, for a total sentence of 272
months’ imprisonment.
On appeal, Smith argues that the district court plainly
erred when it resentenced him as an armed career criminal in

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January 2015.1 The Government concedes that the district court
lacked jurisdiction to rule on its motion at the time of that
ruling.
The Federal Rules of Criminal Procedure “provide[]
sentencing courts with a narrow window of [14] days within which
to correct arithmetical, technical, or other clear error.”2
United States v. Shank, 395 F.3d 466, 468 (4th Cir. 2005)
(internal quotation marks omitted); see Fed. R. Crim. P. 35(a).
For purposes of this rule, “‘sentencing’ means the oral
announcement of the sentence.” Fed. R. Crim. P. 35(c). “Rule
35(a)[] establishes a [14]-day jurisdictional limit.” Shank,
395 F.3d at 470. If the district court does not rule on the
motion within the relevant time period, the motion is
“effectively denied.” Id.
We conclude that the district court lacked jurisdiction to
rule on the Rule 35(a) motion and resentence Smith at the time
of the second sentencing hearing. When the district court
lacked jurisdiction to impose a different sentence, the
1 Smith asserted additional arguments regarding his
convictions in his opening brief, but he explicitly abandoned
those issues in his reply brief.
2 At the time of the Shank decision, the rule provided seven
days for the district court to act. See Fed. R. Crim. P. 35(c)
(2004). The rule was amended in 2009 to extend the time to 14
days. See Fed. R. Crim. P. 35 advisory committee’s note on 2009
amendments.

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appropriate remedy is to vacate the sentence and remand with
instructions to reinstate the original sentence. United States
v. Schafer, 726 F.2d 155, 158 (4th Cir. 1984) (“The trial judge
was without jurisdiction to reduce Schafer’s sentence [under
former Rule 35(b)]. We, therefore, hold that reinstatement of
the original sentence is an appropriate remedy.”); cf. United
States v. Jones, 238 F.3d 271, 273 (4th Cir. 2001) (“[W]e
conclude that the district court lacked authority to amend
Jones’ criminal judgment . . . . We therefore vacate the order
of the district court amending Jones’ sentence and remand with
instructions to reinstate the original sentence.”).
Accordingly, we vacate the district court’s judgment as to
Smith’s sentence and remand with instructions to impose the
sentence announced at the October 29, 2014, sentencing hearing.
We affirm Smith’s convictions. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED IN PART;
VACATED IN PART;
AND REMANDED
WITH INSTRUCTIONS

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