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 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.) This mailing was not returned to the Court.
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. (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.)
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 argued, inter alia, that United States v. Grana, 864 F.2d 312 (3d Cir. 1989) does not mandate a recalculation of Defendant's appeal time because Defendant claimed that he received untimely notice due to slow mail rather than mishandling of the mail by prison authorities. Noting that Defendant had not alleged actual mishandling by prison authorities, but instead disparaged the representations of the Clerk of Court regarding the various mailings it has sent to Defendant and further asserted Defendant's 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 argued that Grana is inapplicable.
Moreover, the Government argued that the record belies Defendant's suggestion that this Court had been derelict in its obligation to provide him with timely notice of decisions in his case. As the Government correctly pointed out, this Court 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.*fn2
In response to the Government's arguments, Defendant submitted a brief, accompanied by a memorandum from a segregation counselor at USP-Hazelton identified only as "P. Garcia" that reads entirely as follows:
A review of the mail room legal letters showed that inmate Pendleton [sic], Brian 12359-067 did not receive any mail thru our legal filing system from Nov 2005 thru Jan 31st 2006. Should you have any questions please contact Segregation Counselor Garcia at 304-379-5000. (Doc. No. 205, Ex. A.)*fn3 On the basis of the foregoing submission and his own affidavit attesting that he did not receive a copy of the November order until February 8, 2006, Defendant reiterated his demands for appointment of counsel and ...