UNITED STATES v. FEAO (2018)

MEMORANDUM ***

Defendant-Appellant Sepasitiano Feao (“Feao”) appeals from the district court's order denying his motion to reconsider his sentence. Our appellate jurisdiction rests on 28 U.S.C. § 1291, and we AFFIRM.

Feao's plea agreement contained a broad waiver of appeal rights, and even if this appeal were not waived, the district court lacked jurisdiction to modify his sentence. A district court may correct a sentence resulting from “arithmetical, technical, or other clear error,” but only “[w]ithin 14 days after sentencing.” Fed. R. Crim. P. 35(a). Rule 35 defines “sentencing” as “the oral announcement of the sentence.” Fed. R. Crim. P. 35(c). A sentence is final when there's a “formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.” United States v. Ochoa, 809 F.3d 453, 458–59 (9th Cir. 2015) (citation omitted). Rule 35(a)’s 14-day window is jurisdictional. See United States v. Aguilar-Reyes, 653 F.3d 1053, 1056 (9th Cir. 2011).

Because “a recommendation to the Bureau of Prisons is not part of a sentence,” Feao's sentence was final after his first sentencing hearing on July 22, 2016. United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011). The district court therefore correctly concluded it lacked jurisdiction to entertain Feao's November 3, 2016 motion to modify his sentence.

AFFIRMED.