United States of America v. Edgar Lerma Flores

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0226p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDGAR LERMA FLORES,
Defendant-Appellant.
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No. 24-5170
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:15-cr-00050-6—Danny C. Reeves, Chief District Judge.
Decided and Filed: October 4, 2024
Before: READLER, MURPHY, and DAVIS, Circuit Judges.
_________________
COUNSEL
ON MOTION TO DISMISS: Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee. IN RESPONSE AND ON BRIEF: Edgar Lerma
Flores, Coleman, Florida, pro se.
_________________
ORDER
_________________
This matter is before the court upon the government’s motion to dismiss for lack of
jurisdiction.
Edgar Lerma Flores pleaded guilty to conspiracy to distribute cocaine and
methamphetamine and was sentenced in 2016 to 300 months of imprisonment. This court
affirmed Flores’s sentence in 2018 and Flores’s subsequent attempts to obtain post-conviction
relief were unsuccessful. Then, in 2023, Amendment 821 became effective and eliminated
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“status points” for certain offenders. Pursuant to General Order No. 23-21, the district court sua
sponte reviewed Flores’s eligibility for a sentence reduction. On February 14, 2024, the district
court issued a “Notice and Order” detailing its findings and informing Flores that the court “does
not intend to reduce [his] previously imposed term of incarceration.” Flores has filed a notice of
appeal. The government moves to dismiss the appeal, asserting that the district court’s Notice is
not a final and appealable order. Flores has filed a response in which he argues that his notice of
appeal was timely filed. His response does not, however, address the appealability of the
February 14, 2024, Notice.
“The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the
district courts of the United States.” 28 U.S.C. § 1291. All decisions in a criminal case typically
“become[] ‘final’ when a defendant has been convicted and the court has imposed a sentence.”
United States v. Smithers, 960 F.3d 339, 343 (6th Cir. 2020) (citing Midland Asphalt Corp. v.
United States, 489 U.S. 794, 798 (1989)). Flores’s case itself has thus long been final.
Yet this appeal concerns post-judgment proceedings about whether to reduce a sentence.
In the context of those proceedings, courts generally hold that a district court has not issued a
final decision until it “completely dispose[s] of the post-judgment matter at issue.” Id.; see
JPMorgan Chase Bank, N.A. v. Winget, 920 F.3d 1103, 1106 (6th Cir. 2019). Thus, an “appeal
is not appropriate if the court merely postpones action on” a request for a reduced sentence. 15B
Charles A. Wright, et al., Federal Practice & Procedure § 3918.6 (2d ed. 2024). But once the
court issues an “order resolving a defendant’s motion for a reduced sentence,” courts generally
treat that order “as final and appealable under § 1291.” Smithers, 960 F.3d at 343.
The February 14, 2024, Notice is not a final appealable decision under this framework.
Although the Notice suggests that the district court would deny a motion for a sentence
reduction, no such motion had yet been filed or adjudicated. And the record reflects that the
district court contemplated further proceedings. For example, when Flores moved to proceed in
forma pauperis on appeal, the district court denied the motion as unnecessary, explaining that,
although Flores stated that he wished to appeal the district court’s denial of his sentence-
reduction motion, Flores had not filed such a motion and the court had not “entered an
appealable Order or Judgment denying him such relief.” The court reiterated later in the order

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No. 24-5170 United States v. Lerma Flores Page 3
that its sua sponte consideration of a sentence reduction resulted in a “Notice” rather than an
“Order”—which was not an adjudication—and did not preclude Flores from filing a motion for
relief under Amendment 821. Because the Notice had not “completely disposed of the post-
judgment matter at issue” (the question whether to grant Flores a sentence reduction), it did not
qualify as a “final decision” under § 1291. Smithers, 960 F.3d at 343.
We acknowledge that the district court’s practice of sua sponte considering eligibility for
sentence reductions may cause confusion for pro se litigants. In this case, however, after the
district court denied Flores’s motion to proceed in forma pauperis on appeal, Flores filed a
motion for a sentence reduction under Amendment 821 that recognized the district court’s
explanation that the prior Notice had not resolved the matter. But the district court denied the
motion on April 26, 2024, and Flores did not appeal that decision.
For the foregoing reasons, we GRANT the government’s motion to dismiss and
DISMISS the appeal for lack of jurisdiction.
ENTERED BY ORDER OF THE COURT
Kelly L. Stephens, Clerk

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