Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Ronnie Kent Hackney, Defendant-appellant, 875 F.2d 868 (6th Cir. 1989)

ORDER

Kent Hackney appeals pro se the district court's judgment denying his motion for a reduced sentence filed under Fed. R. Crim. P. 35 and 18 U.S.C. § 3582(c) (2). The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the certified record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Hackney sought a reduction of his 25 year sentence for armed bank robbery claiming that 18 U.S.C. § 3582(c) (2) entitles him to be resentenced under the guidelines of the Sentencing Reform Act of 1984. The district court dismissed the action for lack of jurisdiction under Fed. R. Crim. P. 35 and for Hackney's failure to otherwise state a cognizable claim for relief.

Upon consideration we affirm the district court's judgment. To warrant consideration under Fed. R. Crim. P. 35, it was incumbent upon Hackney to file his motion within 120 days after his sentence was imposed or within 120 days after his conviction was affirmed or his appeal was dismissed. He did not file this motion within 120 days of any of these events. Therefore, the motion, construed as a Rule 35 motion, was untimely and properly denied by the district court.

Relief was also properly denied based on 18 U.S.C. § 3582. Neither section 3582(c) (2) nor any other provision of the Sentencing Reform Act apply to Hackney because his offense was committed prior to November 1, 1987, the effective date of the Act. See United States v. Watson, 868 F.2d 157 (5th Cir. 1989); United States v. Argitakos, 862 F.2d 423, 424-25 (2d Cir. 1988). See also Farese v. Story, 823 F.2d 975, 977 (6th Cir. 1987) (per curiam).

Accordingly, the district court's judgment is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.