Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1017 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Raymond E. MOSLEY, Defendant-Appellant.

No. 89-50707.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 21, 1990.* Decided May 28, 1991.

Before HUG, WILLIAM A. NORRIS and NOONAN, Circuit Judges.


MEMORANDUM** 

FACTS AND PROCEEDINGS BELOW

Mosley was arrested in Arizona on November 21, 1987. On March 3, 1988, Mosley was charged with eleven counts of drug related offenses. On April 29, 1988, Mosley pled guilty to Counts 4 and 9--respectively, to possession of 24.1 grams of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) (1), and possession of a firearm by a felon, a 12-gauge shotgun, in violation of 18 U.S.C.App. II Sec. 1202(a) (1).

The district court held a sentencing hearing on June 28, 1988. Mosley was sentenced to seven years in custody on Count 4, followed by three years on special parole as required by 21 U.S.C. § 841(b) (1) (B). The court also sentenced Mosley to a two year suspended sentence on Count 9 and placed him on probation for three years after expiration of his special parole.

On September 26, 1988, Mosley filed a motion to modify his sentence under Rule 35 of the Federal Rules of Criminal Procedure. This motion was filed within the 120 days permitted by former Rule 35. The district court denied his motion on October 11, 1988. Mosley did not appeal the district court's denial of his Rule 35 motion. Then on October 31, 1989, 490 days after the sentence was imposed, Mosley filed a motion for reconsideration of his Rule 35 motion. The district court denied his motion of reconsideration on November 16, 1989. Mosley appeals pro se.

ANALYSIS

The district court's authority to consider Mosley's second motion seeking reduction of his sentence "must flow either from the court of appeals mandate under 28 U.S.C. § 2106 (1982) or from Federal Rule of Criminal Procedure 35." United States v. Minor, 846 F.2d 1184, 1187 (9th Cir. 1988). There was no court of appeal mandate in this case; therefore the district court's authority, if any, to resentence Mosley must derive from Rule 35.

The version of Federal Rule of Criminal Procedure that applies to this case1  requires a motion to reduce a lawful sentence or to correct a sentence imposed in an illegal manner to be filed within 120 days of the original sentence. United States v. Stump, 914 F.2d 170, 172 (9th Cir. 1990); United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986). The time limit set by Rule 35 is jurisdictional, therefore the district court has no jurisdiction or power to modify the sentence unless the 120 day requirement is met. Stump, 914 F.2d at 172; Minor, 846 F.2d at 1189.

Mosley's motion for reconsideration was filed more than a year after his sentence was imposed, well after the time limit set by Rule 35. The district court did not have jurisdiction to consider Mosley's untimely motion for reconsideration. United States v. Hetrick, 644 F.2d 752, 756 (9th Cir. 1980). Although we have discretion to treat Mosley's claims as a motion to vacate or correct his sentence under 28 U.S.C. section 2255, we decline to do so since many of the arguments he makes on appeal he did not raise before the district court. The district court's denial of Mosley's motion for reconsideration of his Rule 35 motion is VACATED and Mosley's complaint is DISMISSED for lack of jurisdiction.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Cir.R. 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 Ninth Cir.R. 36-3

 1

Congress revised Federal Rule of Criminal Procedure 35 in 1985 with the advent of the federal sentencing guidelines. The revised rule applies to sentences for offenses committed after November 1, 1987, see Sentencing Act of 1987, Pub. L. No. 100-82, Sec. 2(a), 101 Stat. 1266, 1266 and the prior version, which governs this case, applies to sentences for crimes committed before November 1, 1987. Id. Sec. 22, 101 Stat. at 1271

The applicable version of Federal Rule of Criminal Procedure 35(b) provides:

A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal ...