Direct review must be complete before a judgment is final for purposes of a 2255 motion

United States v. Anthony, 2022 WL 363770 (February 8, 2022) (OK): The panel holds that a judgment of conviction is not final for 28 U.S.C. § 2255 limitation purposes until the individual’s sentence becomes final when direct review is complete. The district court sentenced Anthony to a prison term shortly after trial but did not determine the restitution amount until several months later. When Anthony filed a § 2255 motion challenging his conviction, the district court dismissed the motion as untimely. It said that the one year limitations period under § 2255 began to run when Anthony’s time to appeal the initial judgment expired even though restitution proceedings still were pending on direct appeal. The panel said the district court’s reasoning was incorrect. Restitution is part of a criminal sentence and part of the judgment of conviction for § 2255 purposes. (Restitution, after all, serves punitive purposes.) A judgment of conviction becomes final for § 2255 limitation purposes when there is no further avenue for direct appeal of any portion of the sentence, including restitution. When the district court entered the restitution amount Anthony appealed that portion of his sentence. That appeal delayed the finality of the judgment of conviction for § 2255 purposes. Thus, Anthony’s judgment of conviction is not final until the pending restitution proceeding (his appeal) are complete. NOTE: there are two final judgments in deferred restitution cases for direct appeal purposes. One cannot wait to appeal the judgment and prison sentence until the deferred restitution order is entered: the initial judgment and the subsequent restitution order are each immediately appealable final judgments. However, under § 2255(f)(1), there is only one final judgment of conviction. On the topic of restitution, a few words about United States v. Benally, 19 F.4th 1250 (10th Cir. 2021), a case on which we reported several weeks ago. Although reviewing for plain error, the panel ruled against the defense on the restitution issue, it did find that assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) is not a crime of violence. It said that Borden's reasoning applied not only to violent felonies but also to crimes of violence. Id. at 1257-58. In a footnote, it also rejected the government’s contention that Benally’s arguments in her supplemental brief were barred by the plea agreement's appellate waiver. The panel explained that “the district court effectively modified that provision to allow Benally to appeal the district court’s [restitution] order.” Id. at 1256. Displeased with this note, the government filed a motion to amend the decision. It asked the court to remove the footnote because it claimed it incorrectly stated the law. Our Emily Carey opposed the motion. She argued, inter alia, that a motion to amend is not the pleading by which a party may ask the court to reconsider its decision. The only way that can be done is by a petition for rehearing. The panel agreed with her and denied the government’s motion. This is not the first time the government has used a motion to amend to ask the court to excise portions of an opinion with which it disagrees. It is important that we continue to fight these motions. If one does not oppose the motion, or if one takes no position, the panel likely will grant the motion and remove something that may be useful to our cause in the future. Emily demonstrated that it is worthwhile to challenge these motions.