United States of America v. Mark F. Brummitt

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 9, 2006*
Decided May 19, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1468
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK F. BRUMMITT,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin
No. 04-CR-127-C-01
Barbara B. Crabb,
Chief Judge.
O R D E R
After much procedural wrangling, this criminal appeal has reached the
dispositive stage. The government concedes that Mark Brummitt’s sentence is in
error, but contends that we lack jurisdiction over the appeal. We hold that the
appeal is timely, accept the government’s concession of error, and vacate the
judgment and remand for resentencing.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1468 Page 2
Brummitt pleaded guilty to a one-count indictment charging that in October
2003 he possessed computer disks containing child pornography, see 18 U.S.C.
§ 2252(a)(4)(B). He was sentenced on January 13, 2005. The district court adopted
the guidelines calculations of the probation officer, applying the November 2002
edition of the guidelines manual as amended in April 2003 by the PROTECT Act.
See The Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108-21, 117 Stat. 650
(Apr. 30, 2003). The court began with a base offense level of 15 under U.S.S.G.
§ 2G2.4(a). The court added two levels under § 2G2.4(b)(1) because some of the
subjects in Brummitt’s images were younger than 12 years old, two more levels
under § 2G2.4(b)(3) because the offense involved the use of a computer, and four
levels under § 2G2.2(b)(4) because some of the material included depictions of
violence. The court also added two levels under § 2G2.4(b)(2) because Brummitt
possessed more than 10 compact discs containing illicit images and five levels under
§ 2G2.4(b)(5)(D) because the offense involved 600 or more images. After deducting
three levels for Brummitt’s acceptance of responsibility and timely guilty plea, see
U.S.S.G. § 3E1.1(a), (b), the court arrived at a total offense level of 27. That,
combined with Brummitt’s Category VI criminal history, resulted in a guidelines
range of 130 to 162 months. The district court sentenced Brummitt to 162 months,
the top of that range, as well as a three-year term of supervised release. Brummitt
had objected to the upward adjustments under subsections (b)(2) and (b)(5)(D),
arguing that the facts supported one or the other but not both; the district court
noted his objection but did not expressly rule on it.
The district court entered its judgment on January 28, 2005. On February 4,
within the 10-day period specified by Fed. R. App. P. 4(b)(1)(A), Brummitt’s trial
counsel filed what he captioned as a “Notice of Intent to Pursue Post-Conviction
Relief.” This filing declares Brummitt’s intention to seek “post conviction relief”
from his conviction and sentence, and requests appointed counsel with which to do
so. Then on February 22, which was beyond the 10-day period, counsel filed in the
district court a notice of appeal along with a motion to “enlarge” the time to appeal
in forma pauperis. The notice, but not the related motion, was forwarded to this
court and docketed as case no. 05-1468. On March 1 we issued an order directing
Brummitt’s counsel to show cause in this court why the appeal should not be
dismissed as untimely. We also told him to file a motion in the district court if he
wanted an extension of time, not realizing he already had a motion pending. See
United States v. Brummitt, No. 05-1468 (7th Cir. March 1, 2005). The district court,
in ruling on the pending motion on March 2, was understandably puzzled since
there is no deadline for seeking pauper status: “I am not sure I understand what
defendant’s counsel is saying, but I will provide him an opportunity to file a request
for an extension of time in connection with both his notice of appeal and his motion
for leave to appeal in forma pauperis. No good purpose would be served by not
doing so; defendant is entitled to an appeal from his sentence as of right.”

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No. 05-1468 Page 3
Accordingly, the district court gave Brummitt until March 8 to file “a renewed
motion for an extension of time for the filing of his notice of appeal . . . setting forth
any grounds he may have for a finding of excusable neglect.”
Brummitt’s trial counsel then filed a motion for a 30-day extension of the
appeal deadline on March 7, 2005. He explained that Brummitt had indicated at
sentencing that he wished to appeal, but afterward had been returned to Wisconsin
authorities to finish an unexpired state sentence and was incommunicado during
the 10-day period prescribed by Rule 4(b)(1)(A). Trial counsel explained that
because he could not verify his client’s wishes he followed the “normal practice to
protect the defendant’s appeal rights in the local courts,” which was to file notice of
intent to seek post conviction relief. See Wis. Stat. § 809.30(2)(b). The district court
granted the motion on March 8, finding that Brummitt had “shown good cause for
seeking an extension of time that will enable him to confer with his counsel about
appealing.” The court’s order purports to extend the appeal deadline until April 1,
and on that date trial counsel filed a second notice of appeal.
Brummitt’s April 1 notice of appeal was docketed in this court as case no. 05-
1908. Under that number we ordered Brummitt to show cause why this second
appeal should not be dismissed for lack of jurisdiction, noting that Fed. R. App. P.
4(b)(4) permits district courts to extend the time for filing a notice of appeal only 30
days beyond the original due date. See United States v. Brummitt, No. 05-1908 (7th
Cir., April 20, 2005). The latest the district court could have authorized Brummitt
to file a notice, we held, was March 14. Id. Brummitt’s trial counsel responded that
the appeal already had been opened as no. 05-1468 and asked that no. 05-1908 be
dismissed. We accordingly dismissed the appeal under that number, but added that
Brummitt’s “appeal from the judgment in his criminal case proceeds as Appeal
No. 05-1468.” United States v. Brummitt, No. 05-1908 (7th Cir. June 20, 2005).
The government now argues that appeal no. 05-1468 likewise should be
dismissed for lack of jurisdiction. We do not agree, and conclude that we do have
jurisdiction over this appeal. Brummitt filed his original notice of appeal on
February 22, which we docketed as appeal no. 05-1468. This notice of appeal was
filed late, but we were satisfied that it conferred jurisdiction after the district court
issued its March 8 order granting an extension of time. Although the district court
and Brummitt’s trial counsel both thought it necessary to file a new notice of appeal
after the extension was granted, the notice of appeal filed on February 22 was
rendered timely by the court’s March 8 order. See United States v. Craig, 368 F.3d
738, 739 (7th Cir. 2004); United States v. Brown, 133 F.3d 993, 996 (7th Cir. 1998).
The unnecessary second notice of appeal filed on April 1 generated someconfusion,
but the intervening procedural morass in no. 05-1908 has not changed our minds
that the February 22 notice, on which the case before us was docketed, is timely by
virtue of the filing extension.

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No. 05-1468 Page 4
The government, nonetheless, argues that the district court abused its
discretion by granting that extension. Under Rule 4(b)(4), a district court may
extend the time for filing a notice of appeal up to 30 days upon a showing of
“excusable neglect or good cause.” In determining whether this showing has been
made, a district court should consider the entire context, including the reason for
and the length and impact of the delay, the danger of prejudice to the nonmoving
party, and whether the party responsible for the delay acted in good faith. See
Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir. 2005); see also Brown, 133 F.3d at
996. Here, trial counsel’s failure to understand or abide by the federal rules is
unfortunate, but our standard of review is “generous.” United States v. Alvarez-
Martinez, 286 F.3d 470, 472-73 (7th Cir. 2002) (explaining that, “while it is not at
all excusable for a lawyer to fail to file a timely notice of appeal in a criminal
matter,” district courts have “broad powers under rules like . . . Fed. R. App. P. 4 to
grant extensions of time”). In Brown, an attorney unfamiliar with the federal
courts followed Wisconsin state procedure in filing his appeal, causing him to be one
day late. Brown, 133 F.3d at 996. Although we cautioned that ignorance of the
rules is usually not excusable neglect, we also recognized that “the standard is a
balancing test, meaning that a delay might be excused even where the reasons for
the delay are not particularly compelling.” Id. at 997. Here, the reason for the
delay seems to be both trial counsel’s lack of familiarity with the federal rules, and
the fact that Brummitt himself was incommunicado until after the 10-day deadline
expired. Brummitt’s trial counsel informed the district court that Brummitt had
expressed a desire to appeal already at sentencing, but we do not believe it was an
abuse of the court’s discretion to give counsel an extension in order to confer further
with his client. Because the government concedes error on the merits, there has not
been any substantial prejudice. And, as in Brown, “the result of a dismissal would
be an untidy one” because Brummitt would simply file a motion under 28 U.S.C.
§ 2255 alleging ineffective assistance of counsel, which could ultimately result in a
reinstatement of this appeal. Id. at 997. Accordingly, we see no abuse of discretion
on the part of the district court.
In any event, we note that this appeal would be timely even apart from the
February 22 notice of appeal. Brummitt’s trial counsel filed a “Notice of Intent to
Pursue Post-Conviction Relief” within the 10-day period prescribed by Rule 4, and
that submission substantially complies with the requirements for a valid notice of
appeal. See Nichols v. United States, 75 F.3d 1137, 1140-41 (7th Cir. 1996)
(documents that are inconsistent with the rules may constitute the “functional
equivalent of a proper notice of appeal”). Under Fed. R. App. P. 3(c)(1)(A) and (B), a
notice of appeal must name the parties taking the appeal and the judgment being
appealed, and Brummitt’s submission includes both. It fails only to “name the court
to which the appeal is taken,” see Fed. R. App. P. 3(c)(1)(C), but the rule itself
commands that an appeal “must not be dismissed for informality of form,” and thus
we have refused to “dismiss on mere technicalities, including in the naming of the

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No. 05-1468 Page 5
court to which a judgment is being appealed, if the notice as a whole is not
misleading.” Bradley v. Work, 154 F.3d 704, 707 (7th Cir. 1998); see also Ortiz v.
John O. Butler Co., 94 F.3d 1121, 1125 (7th Cir. 1996). Brummitt’s submission was
not, as a whole, misleading; it could have no other meaning in context than a notice
that Brummitt was appealing the conviction and sentence. Accordingly, even
without the February 22 notice of appeal and the extension that made it timely, we
would have jurisdiction over this appeal.
Finally, as to the merits of this case, the government concedes that the
district court double-counted the illicit images in Brummitt’s possession when it
calculated his offense level. The district court applied both § 2G2.4(b)(2) (because
he possessed more than 10 disks containing illicit images) and § 2G2.4(b)(5)(D)
(because he possessed more than 600 images) when it sentenced Brummitt.
Subsection (b)(5) provides graduated increases depending on the number of images:
two levels for 10 or more, three levels for 150 or more, four levels for 300 or more,
and five levels for 600 or more. U.S.S.G. § 2G2.4(b)(5)(A)-(D) (Apr. 30, 2003). We
recognized in United States v. Long, 425 F.3d 482, 485 (7th Cir. 2005), the potential
for double counting when applying both subsection (b)(2) and subsection (b)(5). The
problem had already been resolved in 2004 with an amendment that eliminated the
separate adjustment in subsection (b)(2), but the district court was compelled to
apply the earlier version of the guidelines because the 2004 revisions also increased
the base offense level and raised ex post facto concerns. See U.S.S.G. § 1B1.11(b)(1).
And in relying on the older version, the court committed the double-counting error
we would later caution against in Long.
Because a district court must correctly calculate the guidelines range, even
though that range is merely advisory, the government is correct to concede error.
See United States v. Hawk, 434 F.3d 959, 962 (7th Cir. 2006). But the government
goes one step further, and contends that we should instruct the district court to
disregard subsection (b)(2), which resulted in a two-level increase, rather than
subsection (b)(5)(D), which compels a five-level increase. Brummitt does not contest
the government’s argument. We agree that at resentencing the district court must
disregard subsection (b)(2) because it was later amended out of the guidelines to
resolve this very difficulty and is wholly encompassed by subsection (b)(5)(A). See
U.S.S.G. App. C, vol. II, amend. 596, at 59-60.
The sentence is VACATED, and the case is REMANDED for resentencing
consistent with this order.

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