Unpublished Disposition, 935 F.2d 276 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 276 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Malcolm Thomas HARDY, Defendant-Appellant.

No. 90-10128.

United States Court of Appeals, Ninth Circuit.

Submitted May 1, 1991.* Decided June 5, 1991.

Before EUGENE A. WRIGHT, GOODWIN and SKOPIL, Circuit Judges.


Malcolm Thomas Hardy appeals pro se the district court's order denying his motion to stay payment of a $20,000 fine imposed following his jury conviction for credit card fraud. He argues that the district court erred by denying the motion in light of his asserted inability to pay the fine until after his release from prison. We do not reach the merits of his argument because we conclude that the district court was not authorized to consider Hardy's motion. Accordingly, we affirm.


Hardy sought a stay of his fine pursuant to former 18 U.S.C. § 3573 (Supp. II 1984) (repealed by Pub. L. No. 100-185, 101 Stat. 1282 (1987)). That section was enacted as part of the Sentencing Reform Act of 1984 and applied only to offenses committed after November 1, 1987. See Pub. L. No. 98-473, Sec. 235(a) (1), 98 Stat. 2032 (1984), as amended by Pub. L. No. 99-217, Secs. 2, 4, 99 Stat. 1728 (1985); Pub. L. No. 99-646, Sec. 35, 100 Stat. 3599 (1986); Pub. L. No. 100-182, Sec. 2, 101 Stat. 1266 (1987). Hardy's crimes were committed prior to that date and therefore section 3573 is not applicable. The current version of section 3573 is also not available to Hardy. That statute authorizes only the government to petition the court to stay payment of a fine. See 18 U.S.C. § 3573 (1988).

Hardy may have been able to petition for a stay of the fine under the former version of Federal Rule of Criminal Procedure 35(b). See United States v. Semler, 883 F.2d 832, 833 & n. 1 (9th Cir. 1989) (applying former version of Rule 35(b) to offenses committed prior to November 1, 1987). Hardy's petition to the court was not timely under that former rule, however, and thus the district court was not empowered to consider the motion. See United States v. Youpee, 836 F.2d 1181, 1182 (9th Cir. 1988) (district court's review of Rule 35(b) motion is barred if not timely filed); see also United States v. Linker, 920 F.2d 1, 2 (7th Cir. 1990) (rejecting a defendant's petition for remission under former and current versions of section 3573 and noting that although such relief might have been available under former Rule 35(b), the time periods had expired).



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), 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 Ninth Circuit Rule 36-3