354 S.C. 142 (2003)
580 S.E.2d 116
Sam B. McQUEEN, Respondent,
v.
SOUTH CAROLINA COASTAL COUNCIL, n/k/a South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, Petitioner.
No. 25642.
Supreme Court of South Carolina.
Heard March 18, 2003.
Decided April 28, 2003.
*145 Leslie W. Stidham, of Charleston; and John D. Echeverria, Hope Babcock, and Michael D. Beach, all of Washington, D.C., for petitioner.
Ronald R. Norton, of Conway; and Daniel J. Popeo, Paul D. Kamenar and R. Shawn Gunnarson, all of Washington, D.C., for respondent.
James S. Chandler, Jr., of Pawleys Island, for amici curiae South Carolina Coastal Conservation League, Sierra Club, National Wildlife Federation, and League of Women Voters of Georgetown County.
Nancy Bloodgood, of Young, Clement, Rivers & Tisdale, L.L.P., of Charleston; and Timothy J. Dowling, of Washington, D.C., for amici curiae Municipal Association of South Carolina and International Municipal Lawyers Association.
Kenneth E. Ormand, Jr., of Columbia; and Christopher G. Senior, of Washington, D.C., for amici curiae Home Builders Association of South Carolina, Home Builders Association of Hilton Head Island, Home Builders Association of Greater Columbia, Home Builders Association of the Low Country, Charleston Trident Home Builders Association, Home Builders Association of Horry-Georgetown, and the National Association of Home Builders.
James T. Young, of Conway; and J. David Breemer, of Sacramento, California, for amicus curiae Pacific Legal Foundation.
Justice MOORE:
This regulatory takings case is before us on remand from the United States Supreme Court to reconsider our previous decision [1] in light of Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001).

FACTS AND PROCEDURE
In the early 1960's, respondent McQueen purchased two non-contiguous lots located on manmade saltwater canals in the Cherry Grove section of North Myrtle Beach. He paid *146 $2,500 in 1961 for a lot on 53rd Avenue and $1,700 in 1963 for a lot on 48th Avenue. Since then, both lots have remained unimproved. The lots surrounding McQueen's are improved and have bulkheads or retaining walls.
In 1991, McQueen filed applications with petitioner Office of Ocean and Coastal Resource Management (OCRM)[2] to build bulkheads on his lots. After an administrative delay, he reapplied in 1993 requesting permits to backfill his lots and build bulkheads. In January 1994, a hearing was held at which the following facts were put into evidence.
At the time of the hearing, the majority of both lots had reverted to tidelands or critical area saltwater wetlands. This reversion was caused by "continuous" erosion, although little change had occurred since the permits were originally sought in 1991. The 53rd Avenue lot is inundated regularly by tidal flow all the way up to the street. The 48th Avenue lot has less tidal flow but contains more critical area wetland vegetation. On both lots, only some irregular portions of high ground remain.
The proposed backfill would permanently destroy the critical area environment on these lots. Without the backfill and bulkheads, the property does not have enough high ground to be developed. Eventually tidal water will reach the roads bordering these lots which will require bulkheads to protect the public roads.
In October 1994, a final decision[3] was issued denying both permits based on OCRM's evaluation of McQueen's lots as predominantly critical area wetlands.[4] McQueen then commenced this action seeking compensation for a regulatory *147 taking. The master-in-equity found the denial of the permits deprived McQueen of all economically beneficial use of the lots and awarded him $50,000 per lot as just compensation.
OCRM appealed. By a divided court, the Court of Appeals affirmed the finding of a taking because McQueen was deprived of all economically beneficial use of his property. The majority held: "The definitive issue is what rights McQueen possessed when he purchased the lots and ... the right to add a bulkhead and fill were McQueen's at the time of purchase." McQueen v. South Carolina Coastal Council, 329 S.C. 588, 595, 496 S.E.2d 643, 647 (Ct.App.1998). The Court of Appeals found the evidence insufficient, however, to support the amount of compensation awarded by the master and the case was remanded. OCRM then sought a writ of certiorari in this Court which was granted.
On review of the Court of Appeals' decision, we reversed. We found it was uncontested that McQueen was deprived of all economically beneficial use of his property but found he had no reasonable investment-backed expectations because of pre-existing wetlands regulations, therefore no taking had occurred. McQueen v. South Carolina Coastal Council, 340 S.C. 65, 530 S.E.2d 628 (2000). The United States Supreme Court then granted McQueen's petition for a writ of certiorari, summarily vacated our opinion, and remanded for further consideration in light of the recent Palazzolo decision.
Palazzolo involved a partial taking of property including wetlands. The Rhode Island Supreme Court found the landowner had not been deprived of all economically beneficial use of his property and, even if he had, the right to fill wetlands was not part of his ownership estate because regulations prohibiting such activity were enacted before he acquired title. Palazzolo v. State, 746 A.2d 707 (2000). On writ of certiorari, the United States Supreme Court reversed holding that preexisting regulation was not dispositive in itself, either in the context of determining ownership rights under background principles of state law or in determining the investmentbacked expectation factor in a partial taking. Palazzolo, 533 U.S. at 626 & 629-30, 121 S.Ct. 2448.

*148 ISSUE
Do background principles of South Carolina property law absolve the State from compensating McQueen?

DISCUSSION
First, we accept as uncontested that McQueen's lots retain no value and therefore a total taking has occurred.[5] When there has been a total deprivation of all economically beneficial use, the threshold issue in determining whether compensation is due is whether the landholder's rights of ownership are "confined by limitations on the use of land which `inhere in the title itself.'" Palazzolo, 533 U.S. at 629, 121 S.Ct. 2448 (quoting Lucas, 505 U.S. at 1029, 112 S.Ct. 2886); see also Rick's Amusement, Inc. v. State, 351 S.C. 352, 570 S.E.2d 155 (2001) cert. denied 535 U.S. 1053, 122 S.Ct. 1909, 152 L.Ed.2d 819 (2002) (threshold inquiry in regulatory *149 taking is whether the property interest affected is inherent in the plaintiffs ownership rights). Background principles of State property and nuisance law inform this inquiry. Palazzolo, 533 U.S. at 629, 121 S.Ct. 2448. Where the proscribed use is not part of the owner's title to begin with, no compensatory taking has occurred. Lucas, 505 U.S. at 1027, 112 S.Ct. 2886.

Public Trust Doctrine
As a coastal state, South Carolina has a long line of cases regarding the public trust doctrine in the context of land bordering navigable waters. Historically, the State holds presumptive title to land below the high water mark. As stated by this Court in 1884, not only does the State hold title to this land in jus privatum, it holds it in jus publicum, in trust for the benefit of all the citizens of this State. State v. Pacific Guano Co., 22 S.C. 50, 84 (1884); see also State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972); Rice Hope Plantation v. South Carolina Pub. Serv. Auth., 216 S.C. 500, 59 S.E.2d 132 (1950), overruled on other grounds, McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985).[6]
The State has the exclusive right to control land below the high water mark for the public benefit, Port Royal Mining Co. v. Hagood, 30 S.C. 519, 9 S.E. 686 (1889), and cannot permit activity that substantially impairs the public interest in marine life, water quality, or public access. Sierra Club v. Kiawah Resort Assocs., 318 S.C. 119, 456 S.E.2d 397 (1995); see also Heyward v. Farmers' Min. Co., 42 S.C. 138, 19 S.E. 963 (1884) (public trust land cannot be placed entirely beyond direction and control of the State); Cape Romain Land & Improvement Co. v. Georgia-Carolina Canning Co., 148 S.C. 428, 146 S.E. 434 (1928) (protected public purposes of trust include navigation and fishery). The State's presumptive *150 title applies to tidelands. State v. Yelsen Land Co., 265 S.C. 78, 216 S.E.2d 876 (1975).
Significantly, under South Carolina law, wetlands created by the encroachment of navigable tidal water belong to the State. Coburg Dairy, Inc. v. Lesser, 318 S.C. 510, 458 S.E.2d 547 (1995). Proof that land was highland at the time of grant and tidelands were subsequently created by the rising of tidal water cannot defeat the State's presumptive title to tidelands. State v. Fain, 273 S.C. 748, 259 S.E.2d 606 (1979).
As described above, each of McQueen's lots borders a man-made tidal canal.[7] At the time the permits were denied,[8] the lots had reverted to tidelands with only irregular portions of highland remaining. This reversion to tidelands effected a restriction on McQueen's property rights inherent in the ownership of property bordering tidal water.
The tidelands included on McQueen's lots are public trust property subject to control of the State. McQueen's ownership rights do not include the right to backfill or place bulkheads on public trust land and the State need not compensate him for the denial of permits to do what he cannot otherwise do. Accord Esplanade Props., Inc. v. City of Seattle, 307 F.3d 978 (9th Cir.2002) (finding no taking where state public trust doctrine precludes dredging and filling tidelands). Any taking McQueen suffered is not a taking effected by State regulation but by the forces of nature and McQueen's own lack of vigilance in protecting his property.
*151 We find no compensation is due. After reconsideration in light of Palazzolo, we reach the same conclusion we originally reached in this case and reverse the Court of Appeals.
REVERSED.
TOAL, C.J., WALLER, BURNETT and PLEICONES, JJ., concur.
NOTES
[1]  McQueen v. South Carolina Coastal Council, 340 S.C. 65, 530 S.E.2d 628 (2000).
[2]  Formerly South Carolina Coastal Council.
[3]  The Coastal Zone Management Appellate Panel upheld denial of the permits.
[4]  S.C.Code Ann. § 48-39-130(C) (Supp.2002) provides that "no person shall fill, remove, dredge, drain or erect any structure on or in any way alter any critical area without first obtaining a permit from the department." Under § 48-39-10(J), "critical area" includes tidelands. "Tidelands" means "all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved." § 48-39-10.
[5]  Our analysis differs depending on whether a taking is characterized as partial or total. When there has been a partial taking by government regulation, the court determines if compensation is due by applying a complex of factors referred to as the Penn Central factors: the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. Palazzolo, 533 U.S. at 617, 121 S.Ct. 2448. Where regulation compels the property owner to suffer a physical occupation or deprives the owner of all economically beneficial use of his property, however, with "certain qualifications," compensation is due. Palazzolo, 533 U.S. at 617, 121 S.Ct. 2448; see also Sea Cabins on Ocean IV Homeowners' Assoc., Inc. v. City of North Myrtle Beach, 345 S.C. 418, 548 S.E.2d 595 (2001). In these two instances, the owner must be compensated "without case-specific inquiry into the public interest advanced in support of the restraint," a factor in the Penn Central complex. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

Lucas left much confusion, however, about whether another Penn Central factor, "investment-backed expectations," survived in the context of a total deprivation case. Compare Good v. United States, 189 F.3d 1355 (Fed.Cir.1999) (this factor applies even in total deprivation case) and Palm Beach Isles Assocs., 231 F.3d 1354 (Fed.Cir.2000) (Lucas eliminated this factor in total deprivation case), petition for rehearing en banc denied 231 F.3d 1365 (Gajarsa, J. dissenting); see also Westside Quik Shop, Inc. v. Stewart, 341 S.C. 297, 534 S.E.2d 270 (2000) (following Good). Palazzolo has not clearly resolved this issue. In light of our disposition on the threshold issue of background principles of state law discussed below, we need not decide whether this factor applies to a total taking.
[6]  The State's presumptive title may be overcome only by showing a specific grant from the sovereign which is strictly construed against the grantee. Hobonny Club, Inc. v. McEachern, 272 S.C. 392, 252 S.E.2d 133 (1979). Cf. City of Folly Beach v. Atlantic House Props., Ltd., 318 S.C. 450, 458 S.E.2d 426 (1995) (without considering public trust, compensation was ordered where it was uncontested plaintiff was "owner of record" of land below high water mark).
[7]  While many of the cases cited above refer to land bordering "navigable tidal" water, under South Carolina law tidal water is presumed navigable unless shown incapable of navigation in fact, a showing not made here. State v. Pacific Guano Co., supra. The fact that a waterway is artificial is irrelevant since it is considered the functional equivalent of a natural waterway. Hughes v. Nelson, 303 S.C. 102, 399 S.E.2d 24 (1990).
[8]  The value of the interest in land is to be determined at the time of condemnation. City of Folly Beach v. Atlantic House Props., Ltd., 318 S.C. 450, 458 S.E.2d 426 (1995). Condemnation occurred when the permits were denied by a final decision. See Palazzolo, 533 U.S. at 618. Regulatory delay does not give rise to a compensatory taking. Sea Cabins, supra.


        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                 No. 16-11406                              FILED
                               Summary Calendar                    September 26, 2017
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee

v.

ROLANDO FRANCISCO MINANO,

                                             Defendant-Appellant

                 Appeal from the United States District Court
                      for the Northern District of Texas

Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Rolando Francisco Minano pleaded guilty to conspiracy to commit mail
fraud and was sentenced, within the guidelines, to 78 months of imprisonment.
His sentence included a 14-level enhancement because he was determined to
be accountable for a loss to the government of $665,962.76. See U.S.S.G.
§ 2B1.1(b)(1)(H). In pleading guilty, Minano waived his right to appeal except,
relevantly, to challenge an arithmetic error at sentencing. He now appeals,
alleging that the district court failed to subtract from the attributable loss total
money that the Government owed to taxpayers as refunds. Minano contends
that the appeal waiver does not bar this claim because the court’s error
                                 No. 16-11406

involved arithmetic. The Government disagrees and asks us to enforce the
waiver. See United States v. Story, 439 F.3d 226, 230 n.5 (5th Cir. 2006).
      “This court reviews de novo whether an appeal waiver bars an appeal.”
United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In so doing, we
“conduct a two-step inquiry: (1) whether the waiver was knowing and
voluntary and (2) whether the waiver applies to the circumstances at hand,
based on the plain language of the agreement.” United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005). We easily resolve the first inquiry against
Minano because his assertions that his plea was not knowing or voluntary are
entirely conclusory. See United States v. Charles, 469 F.3d 402, 408 (5th Cir.
2006). In any event, our review of the record satisfies us that Minano’s waiver
of his appeal rights was both knowing and voluntary. See Bond, 414 F.3d at
544; United States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005).
      Furthermore, as the record does not suggest that the parties intended
the term “arithmetic error” in the appeal waiver to have any special meaning,
we construe it to mean simply “an error involving a mathematical calculation.”
United States v. Logan, 498 F. App’x 445, 446 (5th Cir. 2012) (internal
quotation marks and citation omitted). The error Minano complains of is not
mathematical, as we have used that term. See id. Calculating the loss amount
under § 2B1.1 requires the district court to exercise its judgment in assessing
a nonexhaustive list of factors rather than to apply a strict mathematical
formula.   By attacking the district court’s § 2B1.1 assessment, Minano
challenges the court’s application of that Guideline, not the correctness of its
arithmetic. See id.
      In light of the foregoing, we hold that Minano’s challenge to the § 2B1.1
enhancement is barred by the appeal waiver. See Bond, 414 F.3d at 544.
Accordingly, the appeal is DISMISSED.

                                       2


122 N.J. Super. 156 (1972)
299 A.2d 737
JOHN W. HILL AND ERONA J. HILL, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF EATONTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND JERRY CERAN AND EDITH V. CERAN, HIS WIFE, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Submitted October 24, 1972.
Decided December 7, 1972.
*158 Before Judges FRITZ, LYNCH and TRAUTWEIN.
Mr. Albert T. Berich, attorney for appellants (Mr. Daniel M. Waldman, on the brief).
Messrs. Campbell, Mangini, Foley, Lee & Murphy, attorneys for respondents Board of Adjustment of the Borough of Eatontown (Mr. Michael J. Cernigliaro, on the brief).
Messrs. Cerrato & O'Connor, attorneys for respondents Jerry and Edith Ceran (Mr. William J. Mehr, on the brief).
The opinion of the court was delivered by LYNCH, J.A.D.
Plaintiffs John W. Hill and Erona J. Hill (Hills), next door neighbors of defendants Jerry Ceran and Edith V. Ceran (Cerans), in the Borough of Eatontown, appeal from a judgment of the Law Division which affirmed the granting of a variance to the Cerans to permit certain additions to their residence. The additions would result in violation of the side yard requirement of seven feet as set forth in the applicable zoning ordinance. The proposed improvements would create a side yard of four feet.
On October 21, 1970, the Cerans applied for and received from the building inspector a permit to add a single car garage, laundry room, bath and foyer to their premises. The plans and specifications indicated that the side yard would be only four feet but the Cerans did not know of the seven foot requirement. There is no showing of fraud or lack of good faith on the part of the building inspector in issuing the permit. The court below held that the building inspector "made a mistake."
*159 Construction began on November 4, 1970, and continued until March 10, 1971. At that time, the building inspector, alerted by the Hills, discovered that a mistake had been made in the issuance of the permit, and revoked it because it has been issued in violation of the ordinance. He told the Cerans that he had forgotten to let them know that they needed a variance when he issued the permit.
As the trial court found, substantial work had been completed between November and March. The foundation had been laid and inspected and approved by the building inspector. The rough framing of the rooms and garage area had been completed, the roof had been completely rough-sheathed with plyscore and partially shingled, the side of the garage and the rear of the addition had been rough-sheathed with plyscore. Of an overall estimated cost of $6,000, the Cerans had actually spent $3,500.
When the building inspector advised the Cerans of the revocation of the permit, they promptly applied for a variance and, after hearing, it was granted by the Board of Adjustment.
The trial court also found that if the Cerans were compelled to comply with the seven foot yard requirement the removal of the three feet of the garage would not only be at an additional cost of $1,500, but would also effectively deprive them of the use of the remaining structure (11 feet) for garage purposes. In recommending the variance, the Board of Adjustment found that many of the homes in the immediate area involved had side yards of less than seven feet. The trial court found that there were 40 homes with side yards less than seven feet on both sides and 38 homes where the side yards were less than seven feet on one side. Three of these incursions into the required side yard area were made pursuant to variances granted by the Board of Adjustment, two in 1967 and one in 1970.
Appellants argue that the building inspector "erroneously represented" that the minimum side yard requirement was four feet when in fact it was seven feet but, says appellant's *160 brief, "* * * in so making this good faith representation, no interpretation of the ordinance was necessary * * *" and therefore estoppel may not be applied, citing Jantausch v. Borough of Verona, 41 N.J. Super. 89 (Law Div. 1956), aff'd 24 N.J. 326 (1957), and Bonsall v. Township of Mendham, 116 N.J. Super. 337 (App. Div. 1971), certif. denied 59 N.J. 529 (1971).
What must be decided here, with all semantic obfuscations aside, is simply this  when a building inspector, in good faith, but with mistaken judgment, issues a permit in violation of a zoning ordinance, may estoppel or laches operate in favor of one relying in good faith on the permit?
In our view, appellants misinterpret Jantausch. There, by way of dictum, the court alluded to three categories of cases wherein the issue of estoppel against a municipality may arise with respect to the issuance of permits. The court did not subscribe to any one of the categories, but merely described them: (1) where a permit is regularly issued in accordance with the ordinance, it may not be revoked after reliance by the permittee unless there be fraud; (2) where there is no semblance of compliance wtih or authorization in the ordinance, the deficiency is deemed jurisdictional and estoppel cannot be asserted (hereafter called the "void" class); and (3) the "intermediate situation" where the administrative official "* * * in good faith and within the ambit of his duty makes an erroneous and debatable interpretation of the ordinance and the property owner in like good faith relies thereon * * *." Id. at 94. [Emphasis added] (hereafter called the "voidable" class). In the latter instance, said the court in Jantausch, the cases permit estoppel to operate.
Plaintiff argues that since the building inspector herein had no authority under the ordinance to issue the permit and therefore erroneously issued it to defendants, the action comes within category (2); i.e., the issuance of the permit was totally void ab initio and estoppel may not spring therefrom even though there was reliance thereon by the permittee.
*161 We do not agree. A reading of the cases cited by the court in Jantausch as being examples of the "void" class demonstrates what is meant by that characterization. Thus in V.F. Zahodiakin &c., Corp. v. Bd. of Adjustment, Summit, 8 N.J. 386 (1952), it was said of the "void" action under review that it was "not professed to be an exercise of the statutory power" (Id. at 393); there was "no pretense of adherence to the statutory principle" (Id. at 394); it was "not within the province of the local authority" (Id. at 395); and it was "not a mere irregular exercise of the quasi-judicial function residing in the local authority." (Id.). In Zahodiakin, Justice Heher cited, among other cases, Bauer v. City of Newark, 7 N.J. 426 (1951), as illustrative of what he meant by an act so ultra vires as to be coram non judice and "utterly void," and thus beyond the power of resuscitation by reason of estoppel. In Bauer, Justice Heher described the distinction between an act which a municipality is "utterly without capacity to make under any and all circumstances" and an act "merely voidable for want of authority or for an irregularity in the exercise of the contractual power." Id. at 434.
In Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493 (1955), the Supreme Court, again through Justice Heher, said:
There is a distinction between an act utterly beyond the jurisdiction of a municipal corporation and the irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional. The former are ultra vires in the primary sense and void; the latter, ultra vires only in a secondary sense which does not preclude ratification or the application of the doctrine of estoppel in the interest of equity and essential justice. [Id. at 504].
Further, in Jantausch, Judge Weintraub adverted to Marini v. Borough of Wanaque, 37 N.J. Super. 32 at 40 (App. Div. 1955), wherein the court, speaking of what it assumed to be an unauthorized issuance of a building permit, said "If anything, it was a mistaken or irregular exercise of a ministerial function," rather than an action which is utterly *162 void as in V.F. Zahodiakin &c., Corp., supra, and, as it was characterized in Donovan v. Gabriel and Gruber, 57 N.J. Super. 542, 547 (App. Div. 1959): "* * * a mistaken action on the part of the building inspector * * *" and therefore not "void."
Thus the essential intent of Jantausch was that, if a permit was "irregularly" issued, but in good faith and within the ambit of the building inspector's duty, it is not "utterly void" and estoppel is permissible with proper good faith reliance thereon. And so Jantausch was interpreted in Schultze v. Wilson, 54 N.J. Super. 309 (App. Div.), certif. denied 29 N.J. 511 (1959), where the court said at 323-324:
Although Judge Weintraub was concerned with an ordinance situation and not a building permit case, a reasonable interpretation of his "intermediate" category applies to the instant situation where the officer issues a permit "within the ambit of his duty" in the utmost good faith (there is no proof to the contrary herein) and the property owner accepts it in good faith and relies thereon. As the permit was within the jurisdiction of the inspector to issue even if it was issued irregularly, it was not utterly void. [Emphasis added].
So here, the issuance of the building permit to the Cerans was within the province of the general duties of the building inspector. It was not an act which he was "without capacity to make under any and all circumstances." (Emphasis added). Rather it was a "mistaken or irregular exercise of a ministerial function" (Marini at 40) and "within the purview of his jurisdiction." (Donovan at 547). Therefore it came within the "intermediate situation" referred to in Jantausch and estoppel is not precluded.
By way of analogy, in the area of municipal contracts, a contract which a municipality is "utterly without capacity to make under any and all circumstances" is void. One in which there is no lack of power in the municipality but in which there has been a mere "irregular exercise" of the power, is voidable. In the former category there can be no recovery on the contract. In the latter class there can be recovery upon the theory that one contracting with a public *163 body, under such circumstances, is not obliged to scrutinize, at his peril, the corporate proceedings. Bauer v. City of Newark, supra; Campbell v. City of Hackensack, 115 N.J.L. 209 (E. & A. 1935), and cases cited therein. And here Cerans had a right to rely on the validity of the permit issued to them by the building inspector who had the ostensible power to issue it. Realistically, and in practical recognition of what an ordinary citizen would do in this circumstance, is that not so?
Plaintiffs' contention that it is only when a permit is validly issued that estoppel applies is not well taken. In Jantausch, Judge Weintraub cited as an example of the "intermediate" class the case of Kurowski v. Bd. of Adjustment of Bayonne, 11 N.J. Super. 433 (App Div. 1951). There the building department had no authority to issue a permit for the erection of a storage building in an "A" residence zone. Yet the Appellate Division, adopting verbatim an opinion of then Judge Brennan, affirmed the grant of a variance for the prohibited use. And in Marini v. Borough of Wanaque, supra, also cited in Jantausch as in the "intermediate" class, the court, without passing upon the validity of the building permit involved, dismissed the complaint of Marini, next door neighbor of defendant Gordon and holder of the permit, on the grounds of limitations and laches. The court said:
Finally, we think laches additionally bars plaintiff's way. We are satisfied that he knew what was going on in respect to this structure and withheld his legal fire during a period in which he knew or had every reason to know that a substantial sum of money was being invested in the improvement of this property. [citing cases]. We are aware of the policy that laches should be invoked with hesitation against a taxpayer and citizen vindicating a public right, Garrou v. Teaneck Tryon Co., supra (11 N.J. at pages 306, 307, 94 A.2d, at pages 338, 339), but we deem the application of laches plainly indicated in the present case. [Id. at 41].
The same principle of laches applies against the Hills here. Cf. N.J.S.A. 40:55-42.
*164 Finally we conceive that the additional equitable doctrine of "relative hardship" applies here. Cf. Gilpin v. Jacob Ellis Realties, Inc., 47 N.J. Super. 26 (App. Div. 1957); Sautto v. Edenboro Apartments, Inc., 84 N.J. Super. 461 (App. Div.), certif. denied 43 N.J. 353 (1964). If plaintiffs were to succeed, defendants would be compelled to destroy the improvements they had made before plaintiffs warned them of the possible violation. Id. at 476. That would be a severe hardship to defendants. Over and above the $3,500 already expended, it would cost defendants an additional $1,500, and would leave the new garage too small for its intended use. On the other hand, plaintiffs have suffered no discernible damage by the proposed construction and in fact the Board of Adjustment found that the side yard violation is consistent with many properties in the neighborhood. The resulting "gross inequity" warrants operation of estoppel against plaintiffs. Bonsall v. Township of Mendham, supra, 116 N.J. Super. at 346. While plaintiffs attempt to distinguish Bonsall from the instant situation, we read it as being distinguishable without a difference under the equitable principles here appropriate. Bonsall at 346.
Plaintiffs would have us ignore the "* * * strong recent trend towards the application of equitable principles of estoppel against public bodies where the interests of justice, morality and common fairness clearly dictate that course." Gruber v. Mayor and Tp. Comm. of Raritan Tp., 39 N.J. 1, 13 (1962). The latter statement of our Supreme Court in Gruber was a reference to the Appellate Division opinion in the same case, appearing at 73 N.J. Super. 120. There Judge Gaulkin, for the Appellate Division, had pointed out that, even though the action of the municipality was truly void, equitable principles "akin to estoppel" had been applied in Hilton Acres v. Klein, 35 N.J. 570 (1961), and Tremarco Corporation v. Garzio, 32 N.J. 448 (1960). Gruber, supra, 73 N.J. Super. at 126-128. The Supreme Court, in affirming the Appellate Division decision in Gruber, adopted this philosophy. In simple language, estoppel will *165 be applied against a municipality in the interest of equity and essential justice. Morality and common fairness clearly dictate that course. Gruber, supra, 39 N.J. at 12-17; see also Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 131 (1965); 405 Monroe Co. v. Asbury Park, 40 N.J. 457 (1963).
All of those concepts mandate judgment in favor of defendants. If estoppel and laches apply against the municipality so much the more so against plaintiffs, even though they be deemed to be acting vicariously for the municipality.
The judgment in favor of defendants is affirmed.
FRITZ, J.A.D. (concurring).
With stout conviction buttressed by the language of Gruber v. Mayor and Tp. Comm. of Raritan Tp., 39 N.J. 1 (1962), I firmly believe that estoppel is and should be the proud champion of justice, morality, and common fairness. Consequently, I find it difficult, in the factual milieu of this case, to disagree with the majority in its application of the doctrine. Basic and essential justice, morality and common fairness here insist absolutely that defendants Ceran be permitted to retain the vindication won in the court below.
But even this clear call fails to persuade me that in-attention to (at best  and at worst, total disregard for) the apparent, plain, and unambiguous language of the terms of the zoning ordinance by the building inspector in the undertaking of his duties should generate an estoppel against the municipality, and this despite the so-called bona fides of the official and the lack of fraud. My reserve in this regard has a double predicate: First, a rule of estoppel thus bottomed might well serve to encourage fraud and reward indolence and intellectual indifference, all at the expense of the integrity of the zoning ordinance of a municipality. Second, reliance is an essential element of estoppel, Clark v. Judge, 84 N.J. Super. 35 (Chan. Div. 1964), aff'd o.b. 44 N.J. 550 (1965), and why should such a reliance be tolerated when, simply put, the apparent, plain, and unambiguous *166 zoning proscription is readily available to be seen by the applicant? Proponents for such a rule ask, as the majority here seems to ask, why the "ordinary citizen," not trained in the law, should be required to doubt the correctness of the building inspector, even to the degree of simply checking out his authority against the ordinance. The answer to this inquiry can only be found in a weighing, as a matter of policy, of the difficulty thus imposed on a citizen on the one hand, and the potential for debilitation of the zoning plan (with the concomitant effect on the property of all conforming owners) on the other. On my own scales I see greater and more far reaching dangers if blind reliance by the applying owner is sanctioned. I would eschew reliance in such a situation.
I freely confess that I do not find the situation to be black and white. Considering that an estoppel against the municipality is an infringement to a greater or lesser degree on the rights (and reliances) of each of its individual citizens, the equities are fairly balanced. The case for estoppel made out in the opinion of the majority is engagingly persuasive. But in respectful disagreement with the conclusion of my brethren I think it is not yet the law. In Esso Standard Oil Co. v. North Bergen Twp., 50 N.J. Super. 90 (App. Div. 1958) proximity to a school in the case of a service station was the defect rather than, as here, proximity to a side line in the case of a house. There the permit was issued "through honest mistake," and there was reliance and there were expenditures not capable of recapture. This court held no estoppel. The decision was cited in Saddle River County Day School v. Saddle River, 51 N.J. Super. 589, 606 (App. Div. 1958), aff'd o.b. 29 N.J. 468 (1959) as support for the proposition:
It is now definitely settled in our law that a municipality is not estopped from revoking a permit invalidly issued even where the invalidity was not the fault of the applicant and the latter had proceeded to do some work in reliance thereon.
*167 To the same effect is Adler v. Dept. of Parks, Irvington, 20 N.J. Super. 240 (App. Div. 1952) and Giordano v. Dumont, 137 N.J.L. 740 (1948), the latter expressly charging the owner with notice, actual or constructive, of the invalidity of the permit. The policy considerations involved in that deposition of duty, balanced on the delicate scales to which I adverted above, seem to me to commend the Giordano rule.
Of the greatest concern to me here, however, is the broad sweep of the majority brush in its effort to employ this hard facts case to make applicable and to resolve for all time  as it someday must certainly be resolved  the "intermediate situation" left undecided in Jantausch v. Borough of Verona, 41 N.J. Super. 89 (Law Div. 1956), aff'd 24 N.J. 326 (1957). As there described in the Law Division opinion, that is the situation, between the opposite extremes of a clearly valid and a clearly invalid permit, which eventuates when "the administrative official in good faith and within the ambit of his duty makes an erroneous and debatable interpretation of the ordinance and the property owner in like good faith relies thereon[.]" (41 N.J. Super. at 94.)
That the matter at hand lies outside the question thus defined is illustrated by the simple inquiry: What can there possibly be about an express seven-foot side line restriction which requires any interpretation, or allows as a debatable interpretation the theory that four feet is good enough?
Nor does the majority opinion here modify the Jantausch inquiry sufficiently to bring this case within the issue, because after rejecting "semantic obfuscations" the majority still employs, as a component in the question formula, the "mistaken judgment" of the building inspector. I humbly suggest that "judgment" was no more a necessary element of the decisional process of the building inspector here than was that process merely a "mistaken or irregular exercise of ministerial function." Seven feet may well be seven feet one inch or six feet eleven depending upon whose ruler the building inspector's discretion chooses. But I cannot see the overlooking *168 of a seven foot restriction for a four foot permit as a matter of judgment or an interpretation which even most generously might be regarded as debatable.
If, on the other hand, the majority construes Jantausch to require nothing more than good faith on the part of both the building inspector and the owner, coupled of course with reliance and detriment, then I must respectfully disagree.
A more appropriate question, in Jantausch terms, might be whether the defect here  the differential between the four and seven feet  was a sufficient demonstration of "no semblance of compliance with or authorization" to constitute a jurisdictional impediment at the one Jantausch extreme and in accordance with the cases there cited. For this, too, is a hard question the answer to which in my view is not simply reached as being at the easy extreme and certain proscription. It seems to me in the appropriate case, the law could say in good conscience that the act of the building inspector was in fact ultra vires but, all things considered, not to a fatal extent.[1] As against an anticipated complaint that such a rule is extraordinary and perhaps akin to being only partly dead, I suggest that, as our reported opinions confirm, these are almost always hard cases requiring an extraordinary and imaginative approach in the interest of justice. Insistence on fixed standards and intransigence would isolate this field from the salutary ongoing development which is both the hallmark and the strength of our common law.
But in my view such pathfinding is not necessary here. I would sustain the result below  and I again candidly acknowledge that elemental justice, morality, and common fairness seem to me in the circumstances of this case absolutely *169 to require that result  on the obvious validity of the variance.
I have no doubt that the prerequisites prescribed by N.J.S.A. 40:55-39(c) are sufficiently found in the resolution of the Board of Adjustment, and have adequate support in the record. Additionally, it is obvious that the so-called negative criteria, i.e., those necessary to assure that the relief granted is without substantial detriment to the public good and does not substantially impair the intent and purpose of the zone plan and zoning ordinance, have been satisfied. The plethora of homes with side yards of less than seven feet on both sides, to say nothing of the additional homes where one side yard was less than seven feet (and some of the foregoing the result of reasonably recent variances), alone seems to satisfy the negative criteria.
I have no doubt that a so-called hardship case involving a subsection (c) variance cannot be supported solely by difficulties "personal to the owner * * * unrelated to the physical characteristics of the land * * *." Isko v. Planning Board, Tp. of Livingston, 51 N.J. 162, 174 (1968). Nor do I labor under a misimpression that a hardship created by acts of the owner constitutes the type of thing for which a subsection (c) hardship variance is designed. Place v. Board of Adjustment of Saddle River, 42 N.J. 324, 331 (1964). (However, it should be observed in Place that construction of the prohibited building was commenced without a building permit.) On the other hand, I think we need not, and in this case should not, limit the situation for variances under subsection (c) to so-called hardship cases. A completely reasonable interpretation of the intent of the legislature as it might well be derived from a consideration of the several disjunctives in the statute suggests that while topographic conditions and physical attributes are the prime bases for a subsection (c) variance, "other extraordinary and exceptional situation[s] or condition[s] of such piece of property" will undergird such a variance if the result otherwise were to be "peculiar and exceptional practical difficulties to" the owner *170 of such property. It is to be observed that the language employed in the statute distinguishes by disjunctive between situations and conditions of the property and distinguishes between practical difficulties and exceptional and undue hardship. I am of the opinion that this play in the joints of the machine was intentionally designed by a farseeing legislature to accommodate precisely the type of situations here presented. Through no fault of the owner (and I am speaking of the owner's activities; I have not returned to a consideration of estoppel), his land is now burdened with structural change that creates an "extraordinary and exceptional situation" resulting in "peculiar and exceptional practical difficulties" to him.
For this reason I agree with the majority that the determination below should be affirmed.
NOTES
[1]  Perhaps this is really all the majority opinion is suggesting. If so, I am in hearty accord. But I do not believe this requires any estoppel.


7 So.3d 564 (2009)
Sharon EDELSTEIN, as Personal Representative of the Estate of Shirley A. Beagell, Appellant,
v.
Edward BEAGELL, as Beneficiary of the Estate of Shirley A. Beagell, Appellee.
No. 1D08-5673.
District Court of Appeal of Florida, First District.
February 27, 2009.
Robert M. Moletteire of Moletteire & Torpy, P.A., Melbourne, for Appellant.
Rhonda S. Clyatt of the Law Offices of Rhonda S. Clyatt, Panama City, for Appellee.
PER CURIAM.
Having considered the appellant's response to this Court's order of December 11, 2008, we dismiss this appeal for lack of jurisdiction. The order on appeal, entitled "Final Order on Petition for Determination of Beneficiaries," denied the petition below without making any final determination as to the beneficiaries of the estate. Therefore, the order on appeal did not "finally determine a right or obligation of an interested person," so as to be appealable under Florida Rule of Appellate Procedure 9.110(a)(2). See Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005); Sanchez v. Masterhan, 837 So.2d 1161 (Fla. 1st DCA 2003).
The appellee's "Motion to Dismiss and/or Require Appellant to Properly Designate the Record on Appeal," filed on January 15, 2008, as well as the "Appellant's Motion for Extension of Time to File Initial Brief," filed on January 29, 2009, are denied as moot.
DISMISSED.
WEBSTER, BROWNING and LEWIS, JJ., concur.


448 A.2d 141 (1982)
Janet THORBURN
v.
TOWN OF NORWICH.
No. 324-80.
Supreme Court of Vermont.
May 7, 1982.
Mahady, Johnson, Dunne, Hershenson & Scott, Norwich, for plaintiff.
Plante, Richards, Terino & Hanley, White River Junction, for defendant.
Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.
BARNEY, Chief Justice.
This litigation involves the plaintiff's appeal of her 1978 property tax by the defendant town. Her appeal had been on the docket of the Windsor Superior Court since August of 1978 without being brought on for trial. At the calendar call for the September Term, 1980, this matter was listed on the progress calendar as ripe for dismissal under V.R.C.P. 41(b)(1).
On opening day, at calendar call, the case was not dismissed, but set for a "settlement" conference on September 11, 1980. That conference was attended by plaintiff and her attorney, and officials of the defendant town and its attorney. As a result of the conference a pretrial order was issued that day, scheduling the case as number two "back-up" on the trial calendar for September 23, 1980.
Following the conference at the court-house but after the representatives of the defendant had left, the plaintiff informed her attorney that she had to be absent from the state during the week of September 23, 1980, and that she would not be available to attend trial of the matter until April or May, 1981.
Plaintiff's attorney contacted counsel for the defendant and obtained a stipulation for continuance over the term. This was signed by counsel on September 12th and 15th, 1980, and filed with a proposed order of continuance on September 17, 1980. On being informed that consideration by the court required the filing of a motion for continuance and supporting affidavit, in accordance with V.R.C.P. 40(c) and (d), a motion and an affidavit were also drawn and submitted on September 18, 1980.
The motion came on for hearing September 25, 1980. The court denied the continuance and dismissed the action on the basis of V.R.C.P. 41(b)(1), which reads:
The court, on its own motion, after reasonable notice to all the parties, may dismiss any action that has been pending two years unless good cause is shown for continuance.
The defendant, arguing for affirmance of the ruling below, points out that the requirements of V.R.C.P. 40(c) and (d), which would allow the granting of a continuance, were not complied with in several particulars. First, it was not demonstrated that the absence of the plaintiff, even if she was to be treated as a witness, was in fact *142 unavoidable. Second, the substance of her testimony was not set out. Thirdly, the affidavit was made by the plaintiff's attorney, not by the plaintiff herself.
We agree that all of these considerations indicate a failure to comply with V.R.C.P. 40(c) and (d) and justify this order of dismissal. A reading of the full text of V.R.C.P. 40 reflects the concern that courts must have for the orderly use of court facilities, provided at great expense to the taxpayer for the use of litigants. The design of that rule is directed at avoidance of unnecessary delay, and seeks out alternatives preferable to postponement of the trial if the rights of the parties can be accommodated.
Judgment affirmed.


181 A.2d 239 (1962)
91065 CORPORATION,
v.
INDUSTRIAL NATIONAL BANK et al.
Ex. No. 10349.
Supreme Court of Rhode Island.
May 28, 1962.
*240 Roberts and Coffey, William F. McMahon, Providence, for plaintiff.
Hinckley, Allen, Salisbury & Parsons, Providence, for defendants Industrial National Bank and Walter F. Farrell.
Winograd, Winograd & Marcus, Max Winograd, Providence, for defendant James Sinclair.
PER CURIAM.
This action of assumpsit is before us on the plaintiff's exceptions to the decision of a justice of the superior court sustaining the defendants' demurrers to the first and second counts of its declaration.
Each of the counts alleges an express contract between plaintiff and defendants. A copy of the contract is attached to the declaration and is incorporated by reference in each of such counts. Count one alleges in substance that under the terms of the contract defendants agreed to transfer certain shares of stock of The Outlet Company, a Rhode Island corporation, and that although plaintiff has duly performed as required by it, defendants have breached the contract by failing and refusing to transfer the shares as promised.
Count two alleges in substance that by the terms of the contract defendants represented and warranted that they were the lawful owners of the shares in question with full power to transfer absolute title thereto to the buyer and that they were guilty of a breach thereof in that they were not the lawful owners of such shares with full power to transfer absolute title thereto.
The contract is dated November 10, 1958. Paragraph one thereof reads as follows:
"The undersigned (hereinafter called the Sellers) hereby severally represent and warrant to Roger L. Stevens (hereinafter called the Buyer, which term as used herein shall mean and include any assignee or assignees of the Buyer pursuant to the provisions of Paragraph 12 hereof) that they are and on the Closing Date hereinafter defined will be the lawful owners of the number of shares set forth opposite their respective names below of validly issued, fully paid and nonassessable Common Stock, without par value, of The Outlet Company, a Rhode Island corporation (hereinafter called the Company) aggregating 55,230 shares of said Common Stock (said 55,230 shares of Common Stock being hereinafter called the Optioned Stock), with full power to transfer absolute title thereto to the Buyer, free and clear of any liens, charges, encumbrances and claims of every kind."
The contract throughout describes defendants as "Sellers" and plaintiff's assignor as "Buyer." The signatures of defendants appear in groups on the last two pages thereof, with the following typewritten statements below each group respectively: "Trustees u/11th Clause of Will of Joseph Samuels," "Trustees under Will of Leon Samuels," "Trustees u/Indenture of Trust of Clare S. Quinn dated January 17, 1949," "Trustees under Agreement of Joseph Samuels dated December 28, 1934," and "Trustees under Indenture of Clare S. Quinn dated April 3, 1952." Opposite each group of names appears the number of shares represented in paragraph one of the contract to be owned by the persons whose signatures appear in such group.
The defendants demurred to counts one and two. The issues raised on this appeal relate only to the first three grounds of the demurrers. These in substance allege that under G.L. 1956, § 9-2-9, defendants are not personally liable for the alleged breaches because it appears on the face of each count that defendants added to their signatures to the contract sued upon words indicating that they contracted and signed the same in their representative capacities *241 as trustees and it does not appear therein that they were not duly authorized to make the contract in their representative capacities.
The pertinent portion of G.L. 1956, § 9-2-9, reads as follows:
"Restricted liability on instrument signed as fiduciary.  Where an instrument contains, or a person adds to his signature thereto, words indicating that he contracts or signs in his representative capacity as trustee, executor, administrator, guardian or conservator, he shall not be personally liable on the instrument, if he was duly authorized to make the same in his representative capacity * * *."
The trial justice sustained the demurrers to each count on the ground that the words which were added after the signatures of each group of trustees clearly indicated that defendants were signing the contract in their representative capacities as trustees. He therefore held that defendants were not liable as individuals for the alleged breaches and that a demurrer was the proper procedure to raise such issue.
In the posture of this appeal the first question presented for our determination is whether the narrow issue on which the trial justice based his decision was properly raised by demurrer. In our opinion a demurrer was not the proper procedure. A demurrer lies only when the defect or objection asserted as the ground of demurrer is apparent upon the face of the pleading attacked. 41 Am. Jur., Pleading § 208, p. 439. The declaration in this case does not expressly allege that defendants signed the contract in their representative capacities; neither does the contract contain any language expressly stating that they were contracting or signing in their representative capacities.
The questions whether the typewritten words appearing below the signatures of the defendants were merely descriptio personae, or whether such words indicated that they were contracting and signing in their representative capacities, were questions of fact requiring the introduction of evidence dehors the pleadings. This could only be done by plea. Moreover, the plaintiff was not required, by allegations in the declaration, to negative the statutory defense available to the defendants. The statute in question provides an affirmative defense which must be invoked by defendants. In our opinion the trial justice erred in ruling that a demurrer was the proper way to raise the issue on which he based his decision.
The plaintiff's exceptions to the decision sustaining the demurrers are sustained, and the case is remitted to the superior court for further proceediclair.
POWERS, J., not participating.


945 F.2d 423
UNITED STATES of America, Appellee,v.Joseph G. ZACKULAR, Defendant, Appellant.
No. 91-1482.
United States Court of Appeals,
First Circuit.Heard Sept. 5, 1991.Decided Sept. 24, 1991.

John C. McBride with whom McBride, Wheeler & Widegren, was on brief, Boston, Mass., for defendant, appellant.
S. Theodore Merritt, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, Boston, Mass., for appellee.
Before BREYER, Chief Judge, and ALDRICH and SELYA, Circuit Judges.
SELYA, Circuit Judge.

1
Defendant-appellant Joseph G. Zackular asked the district court to credit, towards time to be served, a period of months that Zackular spent in home confinement after imposition of sentence but before his surrender at the designated correctional institution.   The district court demurred.   Zackular appeals.   We affirm.

I.
Background

2
Because of the limited scope of the legal issues presented in this appeal, we omit any exegetic account of the events leading up to the defendant's sentencing.   It suffices to mention that, pursuant to a negotiated plea agreement, the government filed a criminal information in the district court on November 1, 1990, charging the defendant with conspiracy to transmit a threat in interstate commerce in violation of 18 U.S.C. § 371 (1988).   As agreed, the defendant pled guilty.   The court accepted the plea.   On January 10, 1991, the court sentenced the defendant to, inter alia, a 30-month term of imprisonment.   The court permitted self-surrender, designating February 18, 1991, as the surrender date.

3
Claiming that a knee injury required surgery and then rehabilitation, the defendant moved to extend the time for self-surrender to June 1.   In his motion papers, Zackular volunteered that, if the motion were granted, he would be willing to remain in home confinement until the new surrender date.   On February 15, 1991, the district court obliged, enlarging the time for surrender to June 1, subject to home confinement (except for physical therapy appointments).   On March 29, 1991, the defendant sought to have the time at home credited against his impending sentence.   The district court denied the motion.II.

Analysis

4
We bifurcate our analysis, first considering the district court's power to effectuate a time-served credit.   Finding judicial power, we proceed to consider the court's refusal to exercise its power in the circumstances at bar.

A.
Judicial Power

5
As an initial matter, we reject the government's contention that the authority to credit time against a defendant's sentence rests exclusively with the Attorney General.   The controlling statute provides that:

6
A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--

7
(1) as a result of the offense for which the sentence was imposed....

8
18 U.S.C. § 3585(b) (1988).   This statute replaced 18 U.S.C. § 3568 (repealed by Sentencing Reform Act of 1984, Pub.L. 98-473, tit.  II, 212(a), 98 Stat. 1987, 2001 (1984)), which stated in relevant part that "[t]he Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed...."  The legislative history of section 3585 does not discuss why the earlier reference to the Attorney General was scrapped.

9
We recently commented that, given the absence of legislative history indicating the contrary, the omission of a reference to the Attorney General in section 3585 should be interpreted as reflecting Congress' intention to withdraw its exclusive delegation to the Attorney General and, instead, to vest power to credit sentences in the district court.  United States v. Benefield, 942 F.2d 60, 67 n. 7 (1st Cir.1991) (dictum).   We were unconvinced then, and remain unconvinced today, by the argument, espoused by some other courts, see, e.g., United States v. Herrera, 931 F.2d 761, 764 (11th Cir.1991) (per curiam);  United States v. Brumbaugh, 909 F.2d 289, 291 (7th Cir.1990);  cf. United States v. Woods, 888 F.2d 653, 654 (10th Cir.1989) (assuming continuing power of the Attorney General to credit sentences under section 3585), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990), that Congress' deletion of any reference to the Attorney General is a meaningless datum.   Where, as here, Congress has made a material change in the language of a statute, we will not use the lack of explicit legislative history to contradict what appears to be the plain meaning of that change--especially when following the letter of the statute produces a perfectly workable result.   We conclude, therefore, that the district court had power to grant the instant motion.1

B.
The Merits

10
We turn now to the defendant's contention that he should be given credit towards his sentence for time spent in home confinement.   This circuit has previously interpreted the term "custody" in 18 U.S.C. § 3568 (repealed), the predecessor to section 3585, as requiring incarceration as a precondition to credit.   See United States v. Figueroa, 828 F.2d 70, 71 (1st Cir.1987) (per curiam) (pretrial release on bond does not count as custody for credit against sentence).   For the most part, other courts have treated the term "official detention" under section 3585 as comparable to "custody" under section 3568, and have interpreted both terms to require actual incarceration before allowing time-served credits.   See United States v. Insley, 927 F.2d 185, 186 (4th Cir.1991);  United States v. Woods, 888 F.2d at 655;  see also United States v. Freeman, 922 F.2d 1393, 1397 (9th Cir.1991) (custody under section 3568 requires physical confinement);  Mieles v. United States, 895 F.2d 887, 888 (2d Cir.1990) (same);  Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir.1989) (same);  United States v. Smith, 869 F.2d 835, 837 (5th Cir.1989) (similar).   But cf. Moreland v. United States, 932 F.2d 690, 692 (8th Cir.1991) (time spent at halfway house counts as official detention under section 3585).2

11
We do not believe that the "official detention" requirement of section 3585 can be fulfilled by home confinement.   While a defendant's movement may be severely curtailed by the conditions of his home confinement, it cannot seriously be doubted that confinement to the comfort of one's own home is not the functional equivalent of incarceration in either a practical or a psychological sense.   In the circumstances of this case--where the defendant affirmatively sought the right to self-surrender, and then, bent on deferring the start of his prison term, offered to subject himself to home confinement--allowing the defendant credit for time spent confined to his residence prior to self-surrender would, in essence, allow the defendant to choose the place and manner of his confinement.   Such a ruling would not only be inconsistent with statutory law and the clear weight of authority, but would fly in the teeth of common sense.3

12
The sockdolager is found in the very structure of the statute.   See Chapman v. United States, --- U.S. ---, ---, 111 S.Ct. 1919, 1924, 114 L.Ed.2d 524 (1991) (the overall structure of a statute may be used as a guide to interpreting the statute);  United States v. Mena, 933 F.2d 19, 27 (1st Cir.1991) (similar).   Here, section 3563, entitled "Conditions of Probation," appears in subchapter B, entitled "Probation," of title 18, chapter 227.   Section 3563 sets forth a detailed list of conditions which may be imposed upon a defendant incident to probation.   Home confinement is specifically listed as an acceptable condition of probation.   By contrast, subchapter D of chapter 227, entitled "Imprisonment," in which section 3585 is located, offers no corresponding list of acceptable alternatives to incarceration.   We think the fact that home confinement is included as a condition of probation, but not as a substitute for incarceration, persuasively indicates that Congress considered home confinement not to be the equivalent of immurement, ergo, not to come within the ambit of "official detention."

III.
Conclusion

13
We need go no further.   Although the district court has power to issue time-served credits under 18 U.S.C. § 3585(b), it had no obligation to do so here.   Simply put, the conditions of the defendant's self-promoted home stay did not rise to the level of "official detention" for purposes of section 3585(b).4

14
Affirmed.

1
 This case, like United States v. Benefield, supra, does not require that we resolve a further split in the circuits and declare whether the power to grant credit under 18 U.S.C. § 3585(b) is the sentencing court's exclusive prerogative or is shared concurrently by the court and the Attorney General.   Compare United States v. Wilson, 916 F.2d 1115, 1118 (6th Cir.1990) (under section 3585, the authority to grant credit is vested exclusively in the courts), petition for cert. filed, (U.S. May 13, 1991) (No. 90-1745) with United States v. Beston, 936 F.2d 361, 363 (8th Cir.1991) (per curiam) (authority to grant credit under 18 U.S.C. § 3585 is vested concurrently in the Attorney General and the district court) and United States v. Chalker, 915 F.2d 1254, 1258 (9th Cir.1990) (same).   Hence, we leave that perplexing question for another day

2
 We note that on July 29, 1991, the Eighth Circuit granted rehearing on Moreland and has vacated the opinion for the time being.   We also note that a panel of the Ninth Circuit has ruled that pretrial release on bond at a residential treatment facility under conditions requiring enrollment and no outside contact from 7 p.m. to 5 a.m. constituted custody for purposes of credit under section 3568.  Brown v. Rison, 895 F.2d 533, 536 (9th Cir.1990).   The case appears to have limited precedential force, however, even in the circuit of its origin.   See Freeman, 922 F.2d at 1397 (distinguishing Brown );  see also United States v. Browning, 761 F.Supp. 681, 684 (C.D.Cal.1991) (refusing to follow Brown in a case involving home confinement but no "coercive institutional supervision").   A district court in this circuit has also held, with respect to a pretrial detainee, that time spent under house arrest, wearing an electronic bracelet, counts as official detention under section 3585.   See United States v. Londono-Cardona, 759 F.Supp. 60, 63 (D.P.R.1991).   We think the case was wrongly decided

3
 Moreover, in Zackular's case, we note that such an outcome would also do violence to the federal sentencing guidelines, which prohibit the use of sentencing alternatives, such as home confinement, in cases in which the minimum guideline sentence exceeds ten months.   See U.S.S.G. § 5C1.1(f), comment.  (n. 8)

4
 While home confinement cannot be used to satisfy the "official detention" component of a defendant's sentence under section 3585, a district judge may consider time spent in home confinement, either as a pretrial detainee or after conviction but prior to sentencing, as a factor in determining where, within the appropriate guideline range, to set a defendant's sentence


992 F.2d 1220
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.John LANGERSTON, aka John L. Johnson, Defendant-Appellant.
No. 90-10126.
United States Court of Appeals, Ninth Circuit.
Submitted April 16, 1993.*Decided April 28, 1993.

Before SCHROEDER, PREGERSON, and D.W. NELSON, Circuit Judges.

1
MEMORANDUM**

2
John Langerston ("Langerston") pleaded guilty to one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).   He was sentenced to fifteen years imprisonment and ten years supervised release.   Langerston filed a timely but unsuccessful motion for reduction of sentence pursuant to Fed.R.Crim.P. 35(b).1  Langerston then filed a motion for reconsideration, which was also denied.   Although Langerston timely appealed from that denial, we have no jurisdiction over the issues he raises.   The appeal must be dismissed.

I. Motion for Reduction of Sentence
A. Jurisdiction

3
Langerston's offense was committed in April 1987.   Under the version of Rule 35(b) applicable to offenses committed prior to November 1, 1987:

4
[a] motion to reduce a sentence may be made ... within 120 days after the sentence is imposed ... or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation modification.   The court shall determine the motion within a reasonable time.

5
"The district court's ruling on a Rule 35 motion is reviewed for illegality or gross abuse of discretion."   United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990).

6
The judgment in this case was entered on November 18, 1987.   Langerston filed his Rule 35 motion on March 14, 1988, well within the 120-day time limit specified in the Rule.   The motion was denied on May 11, 1988.   Langerston did not file a notice of appeal from the order denying his motion.   Instead, Langerston waited until November 29, 1989 to file his motion for reconsideration, which was denied on February 7, 1990.

7
The district court did not have jurisdiction to entertain Langerston's motion for reconsideration.   The 120-day time limit of Rule 35 is jurisdictional:

8
[T]he timely filing of a Rule 35 motion does not give a district court jurisdiction to entertain subsequent, untimely Rule 35 motions.   The second motion will not be deemed to relate back to the first motion.   Nor is the jurisdictional defect cured by styling the subsequent motion as a "motion for reconsideration."

9
United States v. Hetrick, 644 F.2d 752, 756 (9th Cir.1980) (citations omitted).   Langerston's motion for reconsideration was filed eighteen months after the district court's denial of his Rule 35 motion, and well beyond 120 days from the imposition of the sentence.   The district court erred by considering the motion for reconsideration, and we are without jurisdiction to review the merits.

10
Moreover, we are without jurisdiction to review the district court's denial of the original, timely Rule 35 motion.   Under Fed.R.App.P. 4(b), a party must file a notice of appeal within 10 days after the date of entry of the judgment or order appealed from.   Langerston failed to file any notice of appeal from the denial of the motion.   Absent a timely notice of appeal, we have no jurisdiction to review the decision of the district court.2

11
B. Failure to Consider Post-Incarceration Accomplishments

12
Langerston also argues that the district court erred by refusing to consider his accomplishments while in prison in ruling on the Rule 35 motion.   As noted above, we lack jurisdiction to review the district court's denial of the Rule 35 motion.   Furthermore, the "Extra Good Time Recommendations" and other documents which Langerston cites in support of his accomplishments were never filed in the district court.  "Pursuant to Federal Rule of Appellate Procedure 10(a), exhibits and papers not filed with the district court or admitted into evidence are not part of the appellate record."   See United States v. Sanchez-Lopez, 879 F.2d 541, 548 (9th Cir.1989).   While we commend Langerston on his conduct while in prison, we are not able to consider these documents on appeal.3

13
II. Reliance on Information in Presentence Report

14
Langerston's final claim is that the district court violated Fed.R.Crim.P. 32(c)(3)(D) by failing to make written findings about controverted information in the presentence report.4  Langerston made this argument in his August 14, 1991 Rule 32 motion.  "Finding no meritorious arguments in the petition," the district court denied his motion on September 9, 1991.   Langerston did not appeal.   Once again, we have no jurisdiction over Langerston's claim.   Langerston's Rule 32 motion was not filed until seventeen months after the filing of his original notice of appeal.   The denial of the Rule 32 motion was not encompassed by the March 5, 1990 notice of appeal, nor has Langerston made any effort to appeal the order itself.

15
Moreover, the district court had no jurisdiction to entertain the Rule 32 motion.  "[O]nce the district court has imposed sentence, the court lacks jurisdiction under Rule 32 to hear challenges to a presentence report."   United States v. Catabran, 884 F.2d 1288, 1289 (9th Cir.1989).   Langerston did not object to the factual information in the presentence report prior to sentencing.   His attempt to do so more than three and a half years later simply is not timely.

16
Because we are without jurisdiction, Langerston's appeal must be dismissed.

17
DISMISSED.

*
 The panel unanimously finds this case suitable for decision without oral argument.   Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1
 Langerston did not take a direct appeal from his sentence

2
 Were we to reach the merits of the appeal, we would affirm the decision of the district court.   The "mitigating" information which Langerston describes in his Rule 35 motion was available to the district court prior to sentencing (e.g., from the presentence report).   Langerston's remaining arguments go to the harshness of the sentence and Langerston's conduct while in prison.   The district court "considered defendant's motion and reviewed the record" before denying the motion.   We would not find such a denial to constitute a "gross abuse of discretion."

3
 In addition, all of these documents are dated after Langerston submitted his last supplement in support of his motion for reconsideration.   In fact, all but one of the documents are dated after the district court's denial of that motion

4
 Langerston claims that the district court erred by denying his Rule 35 motion because it relied on this controverted information when setting the sentence.   However, Langerston did not raise this argument in his filings in the district court in support of his motions for a reduction of sentence