United States v. Paull

GRIFFIN, Circuit Judge,

concurring in part, and dissenting in part.

I would hold that we lack jurisdiction to decide issues unrelated to defendant Pauli’s sentence. Thus, for the reasons expressed below, I disagree and respectfully dissent from footnote 1 of the lead opinion. However, assuming arguendo our jurisdiction regarding all issues, I join the remainder of the Chief Judge’s opinion.

In his appellate brief, defendant Pauli challenges various pretrial rulings, asserts that he was denied a right to fair trial, contends that the statute on which his conviction was based is unconstitutionally vague, and appeals his sentence. Defendant’s notice of appeal, however, unambiguously requests review of his sentence only:

Now comes the Defendant, Jerry Pauli, by and through his attorney, Kevin M. Cafferkey, who hereby gives Notice of Appeal to the United States Court of Appeals for the Sixth Circuit from the sentencing of the United States District Court on the questions of law and fact on the above entitled cause entered by the said district court in its sentencing of defendant on April 5, 2007. To preserve defendant’s right to appeal, counsel was advised on Monday, April 16, 2007 to file a Notice of Appeal in a timely manner without the Judgment and Commitment Order, which, to date, has not been journalized for the docket in this case.

The appeal will also challenge, pursuant to Title 18, U.S.C. 3742(a), the legality of the sentence, to wit: That said sentence was unreasonable and was greater than necessary to comply with the purposes of sentencing as provided for in 18 U.S.C. 3553, et seq. and was in violation of law, and/or was the result of an incorrect application of the Sentencing Guidelines and/or is greater than the sentence specified in the applicable guideline range.

Given the sole basis for his appeal and the broader issues raised in defendant’s *531 appellate brief, we are confronted with the threshold question of jurisdiction. “An appellate court has a duty to consider sua sponte whether appellate jurisdiction is properly invoked.” Mattingly v. Farmers State Bank, 153 F.3d 336, 336 (6th Cir. 1998). Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure requires that the notice of appeal “designate the judgment, order, or part thereof being appealed.” The Supreme Court has stated that “Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244, 248 , 112 S.Ct. 678 , 116 L.Ed.2d 678 (1992). Consistent with the Supreme Court’s directive, we have stated that the requirements of Rule 3 are “mandatory and jurisdictional in nature,” Isert v. Ford Motor Co., 461 F.3d 756, 759 (6th Cir.2006), and that this court cannot waive them. Martin v. Gen. Elec. Co., 187 F. App’x 553, 557 (6th Cir.2006) (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 , 108 S.Ct. 2405 , 101 L.Ed.2d 285 (1988)). By enacting this provision, “Congress has limited this Court’s appellate review to issues designated in the notice of appeal.” United States v. Glover, 242 F.3d 333, 335 (6th Cir.2001). Accordingly, if an appellant “chooses to designate specific determinations in his notice of appeal — rather than simply appealing from the entire judgment — only the specified issues may be raised on appeal.” McLaurin v. Fischer, 768 F.2d 98, 102 (6th Cir.1985). Accord United States v. Univ. Mgmt. Servs., Inc., 191 F.3d 750 , 756 (6th Cir.1999); Caldwell v. Moore, 968 F.2d 595, 598 (6th Cir.1992) (“[Wjhere a notice of appeal specifies a particular order, only the specified issues related to that order may be raised on appeal.”); Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510, 516 (6th Cir. 1991); United States v. Pickett, 941 F.2d 411 , 415 n. 3 (6th Cir.1991) (“An appellant waives any appeal to a portion of a judgment not mentioned in his notice of appeal if he chooses to designate specific determinations in his notice.”) (internal quotation marks omitted). We are therefore precluded from considering matters beyond the scope of the orders, judgments, or parts thereof specifically designated in the notice of appeal.

Although the Chief Judge is correct that we generally construe the notice of appeal liberally and avoid “overly technical” readings of Rule 3(c)’s requirements, defendant’s notice of appeal unambiguously challenges the district court’s determinations relating to his sentence. Specifically, the introductory sentence of the notice states:

Now comes the Defendant, Jerry Pauli, by and through his attorney, Kevin M. Cafferkey, who hereby gives Notice of Appeal to the United States Court of Appeals for the Sixth Circuit from the sentencing of the United States District Court on the questions of law and fact on the above entitled cause entered by the said district court in its sentencing of defendant on April 5, 2007.

(Emphasis added.) The next paragraph of the notice further emphasizes that defendant is appealing his sentence, uses the words “sentence” or “sentencing” four times, and even designates specific parts of the sentence as the basis for his appeal:

That said sentence was unreasonable and was greater than necessary to comply with the purposes of sentencing as provided for in 18 U.S.C. 3553, et seq. and was in violation of law, and/or was the result of an incorrect application of the Sentencing Guidelines and/or is greater than the sentence specified in the applicable guideline range.

(Emphasis added.) Defendant cites but two statutes in his notice — 18 U.S.C. § 3742 (a) and 18 U.S.C. § 3553 — both of *532 them sentencing statutes. Nowhere in the notice did defendant, who was represented by counsel, manifest an intent to appeal his conviction, the district court’s pretrial rulings, the alleged denial of the right to fan-trial, or the constitutionality of the statute on which his conviction was based.

However, footnote 1 of the lead opinion states:

[T]he better reading, in light of the fact that, as the Notice indicates, “counsel was advised ... to file a Notice of Appeal in a timely manner without the Judgment and Commitment Order, which, to date, has not been journal-ized,” is that this is a generalized notice of appeal sufficient to give us jurisdiction over Pauli’s entire appeal. This broader reading is confirmed by the Notice’s second paragraph beginning “[t]he appeal will also challenge ... the legality of the sentence” — language that would not make sense unless Pauli intended to challenge the conviction and pre-trial orders as well.

I respectfully disagree. Defense counsel referenced the Judgment and Commitment Order in the notice of appeal to explain why he was filing a premature notice of appeal. Defense counsel was clearly concerned about the impact of the district court’s delay in entering written judgment on his client’s right to appeal. Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure imposes a strict ten-day deadline for filing notices of appeal after entry of judgment in a criminal case. District judges carefully advise criminal defendants at sentencing of that unforgiving deadline. Accordingly, defendant referenced the Judgment and Commitment Order in his notice not because of its content, but because of its timing — defendant simply intended to preserve his right to file a timely appeal. Consistent with this interpretation, the notice states:

To preserve defendant’s right to appeal, counsel was advised on Monday, April 16, 2007 to file a Notice of Appeal in a timely manner without the Judgment and Commitment Order, which, to date, has not been journalized for the docket in this case.

(Emphasis added.)

The first sentence of the second paragraph does not alter this construction of defendant’s intent. That sentence reads, in relevant part: “The appeal will also challenge, pursuant to Title 18, U.S.C. 3742(a), the legality of the sentence.” In fact, that sentence merely confirms just what it says: that defendant intended to challenge his sentence. Contrary to the lead opinion, the word “also” does not demonstrate that defendant intended to appeal matters beyond his sentence. Having already designated his intent to appeal “from the sentencing” in general, defendant simply intended to then articulate those specific parts of the sentence to be challenged:

That said sentence was unreasonable and was greater than necessary to comply with the purposes of sentencing as provided for in 18 U.S.C. 3553, et seq. and was in violation of law, and/or was the result of an incorrect application of the Sentencing Guidelines and/or is greater than the sentence specified in the applicable guideline range.

The notice in this case is similar to the notice in United States v. Harper, No. 07-3593 (6th Cir. Oct. 1, 2008) (unpublished) in which we held that the court had jurisdiction to consider on appeal only issues related to defendant’s sentence. 1 The notice in Harper read:

*533 Notice is hereby given that the Defendant in the above-captioned action, Dennis P. Harper, by and through his undersigned attorney, hereby APPEALS to the United States Court of Appeals for the Sixth Circuit from the Sentence of this Court, entered on April 30, 2007, with Judgment in a Criminal Case being filed on May 1, 2007.

Id. at 1 . Thus, in Harper, although the notice referenced the “Judgment in a Criminal Case,” we concluded that “there is no way to reasonably read Defendant’s notice of appeal as seeking review of his conviction.” Id. at 3 .

Here, as well, we cannot assume post hoc that defendant intended to appeal issues separate from his sentence simply because the words “Judgment and Commitment Order” appear in the notice. To do so is to impart jurisdiction where there is none. Although we may give an appellant the benefit of the doubt, we cannot render jurisdictional requirements meaningless by stretching them beyond recognition. “[Fjederal courts are courts of limited jurisdiction with only such jurisdiction as is defined by the Constitution and granted by Congress.” Glover, 242 F.3d at 335 (internal quotations and citation omitted). If defendant intended to appeal matters beyond his sentence, he could have, and would have, so stated.

For these reasons, I concur in part and dissent in part. I respectfully dissent from footnote 1 of the lead opinion. However, assuming arguendo our jurisdiction regarding all issues, I join the remainder of Chief Judge Boggs’s opinion.

. Unpublished opinions of this court are not precedentially binding under the doctrine of stare decisis but may be considered for their persuasive value. United States v. Lancaster, *533 501 F.3d 673, 677 (6th Cir.2007); United States v. Sanford, 476 F.3d 391, 396 (6th Cir.2007).