The opinion of the court was delivered by: Chief Judge Kane
On November 22, 2004, pursuant to an agreement promising cooperation with the Government, Defendant pleaded guilty to one count of carjacking, in violation of 18 U.S.C. § 2119, and one count of possessing a firearm during, in relation to, and in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c).*fn1 A presentence report was filed with the Court, calculating Defendant's criminal history as Category IV and his offense level as 30, resulting in a guideline range of 135 to 168 months imprisonment, followed by an additional five-year sentence for the weapons charge contained in Count VIII. On March 17, 2005, the United States moved the Court to depart downward five levels from the sentencing guidelines applicable to Defendant and represented that Defendant provided the Government with substantial assistance in the prosecution of two co-defendants for the commission of several violent offenses. For this substantial assistance, the Government requested that the Court sentence Defendant within a guideline range of 84 to 105 months, followed by a consecutive five-year sentence on Count VIII.
On March 22, 2005, the Court granted the Government's motion for downward departure, and imposed a sentence of 147 months imprisonment, consisting of 87 months on Count IV and 60 months on Count VIII. At sentencing, Defendant voiced an objection, independent of counsel, to the original guideline application. Finding no basis for the objection, the Court overruled it, noting that if Defendant could produce the authority he referenced, a motion pursuant to Federal Rule of Criminal Procedure 35(a) would properly be filed.
On March 25, 2005, pursuant to Rule 35(a), Defendant moved to correct or amend the sentence imposed. (Doc. No. 139.) Specifically, Defendant argued that the Court erred in assigning criminal history points for Defendant's non-jury juvenile adjudications that came within two years of Defendant's guilty plea in this case. Defendant contended that if the Court had refused to include Defendant's juvenile offenses in his criminal history calculation, Defendant would have been categorized with a reduced criminal history and would have been subjected to a considerably lower sentencing-guideline range. On November 3, 2005, this Court entered an order denying Defendant's motion on the grounds that the United States Court of Appeals for the Third Circuit had squarely rejected Defendant's argument in United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003) ("A prior non-jury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes."). (Doc. No. 180.)
The docket reveals that on November 15, 2005, the copy of the Court's November 3, 2005, order that had been mailed to Defendant was returned to the Clerk of Court, apparently because the address was incomplete or contained an incomplete registration number. (Doc. No. 181.) The Clerk of Court entered a docket annotation indicating that a copy of the November 3, 2005, order was re-mailed to Defendant on November 15, 2005. (Id.)
The docket further reflects that on January 6, 2005, Defendant contacted the Clerk of Court, claiming that he still had not received a copy of the November 3, 2005, order. (Docket Ann. Jan. 6, 2006.) The Clerk of Court confirmed that Defendant was incarcerated at USPHazelton in Bruceton Mills, West Virginia. (Id.) The docket indicates that on January 6, 2005, the Clerk of Court sent another copy of the November 3, 2005, order to Defendant addressed to P.O. Box 2000, Bruceton Mills, West Virginia. (Id.) Approximately one month later, on February 3, 2006, pursuant to Defendant's request, the Clerk of Court mailed Defendant copies of his indictment, superseding indictment, and sentencing memorandum to USP-Hazelton. (Docket Ann. Feb. 3, 2006.)
On February 22, 2006, Defendant submitted a pro se notice of appeal with the United States Court of Appeals for the Third Circuit, challenging this Court's November 3, 2005, order denying Defendant's motion to amend or correct his sentence. (Doc. No. 184.) The notice of appeal was accompanied by a motion to allow Defendant to file his notice of appeal out of time. (Id., Attachment 1.)
On June 19, 2006, the Third Circuit remanded Defendant's notice of appeal to this Court with the following instructions:
The foregoing appeal is remanded to the District Court with instructions to determine the cause of Appellant's delayed receipt of the order. If it finds that the delay was caused by the prison, the District Court should recalculate the time for filing the appeal from the date Appellant received notice of the order and determine whether the notice of appeal was timely filed under the principles set forth in U.S. v. Grana, 864 F.2d 312 (3d Cir. 1989). In the event the District Court finds that the notice of appeal was not timely filed, even with the recalculated date due to prison delay, it should then rule on Appellant's motion for extension of time. The motion for extension of time to file an appeal was misdirected to this Court. This Court is without authority to extend the time to appeal; thus, the motion will be forwarded to the District Court for consideration. This Court retains jurisdiction. (Doc. No. 194.) Accordingly, the Court has been charged with determining the cause of Defendant's allegedly delayed receipt of this Court's November 3, 2005, order, and to rule on Defendant's motion to extend the time for filing a notice of appeal, in the event the Court determines that the notice of appeal was untimely even with the due date recalculated due to prison delay.*fn2
The docket in this case reveals that the Clerk of Court mailed Defendant a third copy of the Court's November 3, 2005, order on January 6, 2006, and the docket does not reflect that this mailing was returned.*fn3 Nevertheless, Defendant has claimed he did not receive the mailing until "around the first week in February, 2006." (Doc. No. 194, Attachment 1.) In contrast to the suggestion of the Third Circuit, Defendant did not specifically allege that the delivery delay was the result of prison mishandling of the mail; rather, Defendant initially asserted only that he "should not be held liable for postal service malfunctions or for the district court's lack of regard for providing the defendant with a copy of the motion's order thereof." (Govt. Ex. D, p. 2.)
Although the Court found the record contained little to support Defendant's contention that he did not receive the Court's order until early February 2006, the Court directed the Government to show cause why the Defendant's notice of appeal filed February 22, 2006, should not be considered timely filed or, alternatively, why Defendant's motion for an extension to file the appeal should not be granted. (Doc. No. 198.)
The Government responded in a brief filed July 21, 2006. (Doc. No. 201.) In its response, the Government argues first that United States v. Grana, 864 F.2d 312 (3d Cir. 1989), does not mandate a recalculation of Defendant's appeal time because Defendant's claim of untimely notice asserts slow mail rather than mishandling by prison authorities. Noting that Defendant nowhere alleges actual mishandling by prison authorities, but instead disparages the representations of the Clerk of Court regarding the various mailings it has sent to Defendant and further asserts Defendants' belief that he should not be penalized for "postal service malfunctions or for the district court's lack of regard for providing the defendant with a copy of the [November 3, 2005 Order]," the Government maintains that Grana is inapplicable.
Moreover, the Government argued that the record belies Defendant's suggestion that this Court has been derelict in its obligation to provide him with timely notice of decisions in his case. As the Government correctly points out, this Court has sent Defendant copies of the November 3, 2005, order on three separate occasions -- first on November 3, 2005; a second time on November 15, 2005; and a third time immediately following a telephone call that this Court's deputy clerk had with Defendant on January 6, 2006, during which Defendant was notified that the Order had been entered on November 3, 2005.*fn4
The Government next argues that to the extent the Defendant can be found to have claimed untimely notice for reasons other than slow mail or this Court's failure to provide Defendant with notice, the Court should require Defendant to specify the precise nature of his factual claim and to submit documentary evidence that he may have to support such claim. The Government notes that Defendant submitted a motion on June 30, 2006, seeking an evidentiary hearing because such hearing is allegedly necessary "in order to present evidence and arguments that will militate in favor of the merits of the movant's claim" and "to propound relevant testimony from the various ...