United States v. Bello, Crim. No. Y-81-00462.
Decision Date | 23 July 1984 |
Docket Number | Crim. No. Y-81-00462. |
Citation | 588 F. Supp. 102 |
Court | U.S. District Court — District of Maryland |
Parties | UNITED STATES of America v. James Richard BELLO. |
James Savage, Asst. U.S. Atty., Baltimore, Md., for plaintiff USA.
Fred Warren Bennett, Federal Public Defender, Baltimore, Md., and David R. Hazelton, Washington, D.C., for defendant James R. Bello.
The defendant, resentenced on April 16, 1984, to a 17-year prison term after remand from a partially successful appeal to the Fourth Circuit, has filed a motion to correct an alleged illegal sentence under Rule 35(a), Fed.R.Crim.P. As the defendant candidly admits in his memorandum, an appeal of the sentence at issue here was filed April 24, 1984. The Court has determined that it is without jurisdiction to consider the motion to correct illegal sentence because of the pendency of appeal, and the motion will, therefore, be denied.
The defendant's argument as to jurisdiction is included at page 4 of his brief:
Unlike a motion under Rule 35(b), where a district court is without jurisdiction to reduce a sentence once an appeal has been filed, a motion under Rule 35(a) may be made and resolved "at any time."
While it is true that Rule 35 allows motions for correction of illegal sentences to be filed "at any time," courts reviewing the rule have concluded that portion of the rule refers only to the absence of any deadline for filing such a motion, not to whether a district court has jurisdiction to consider the motion while an appeal is pending. The court's discussion of this matter in the seminal case of United States v. Mack, 466 F.2d 333, 340 (D.C.Cir.), cert. denied, 409 U.S. 952, 93 S.Ct. 297, 34 L.Ed.2d 223 (1972), is instructive:
The Mack court cited a portion of 9 J. Moore, Federal Practice, ¶ 203.11 at 3-44 through 3-47 (1983), which reads as follows:
The filing of a timely and sufficient notice of appeal has the effect of immediately transferring jurisdiction from the district court to the court of appeals with respect to any matter involved in the appeal. It divests the district court of authority to proceed further with respect to such matters, except in aid of the appeal, or to correct clerical mistakes under Rule 60(a) of the Federal Rules of Civil Procedure or Rule 36 of the Federal Rules of Criminal Procedure, or in aid of execution of a judgment that has not been superseded, until the district court receives the mandate of the Court of Appeals.
Even if the motion for correction predates the notice of appeal, one court has held that the pendency of the appeal wrests jurisdiction over a Rule 35(a) motion from the district court.
After sentencing, and one day before filing notice of appeal, defendant moved to correct the "illegal" sentence. After receiving the government's response to that motion, Judge King correctly ruled that the district court lacked jurisdiction to vacate an illegal sentence once a notice of appeal has been filed.
United States v. Garrett, 583 F.2d 1381, 1391 (5th Cir.1978). And even where a court concluded that it had illegally sentenced a defendant to four years when the statute authorized only a two-year maximum, the court refused to change the sentence because of the pending appeal. United States v. Ryans, 559 F.Supp. 12, 13 (E.D.Tenn.1982).
The defendant's attorney, having learned of the Court's concern over the issue of jurisdiction, has orally cited additional authority for the proposition that the Court does have jurisdiction. Relying primarily on Doyle v. United States, 721 F.2d 1195 (9th Cir.1983), the defendant maintains that none of the authority cited by the Court above is binding. Doyle does, indeed, stand for the proposition that a sentencing court "retains jurisdiction to correct sentence under Rule 35(a) while...
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