United State of America, Plaintiff-appellee, v. Anders Migdaleck, Defendant-appellant, 952 F.2d 404 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 952 F.2d 404 (6th Cir. 1991) Oct. 1, 1991

Before KENNEDY and DAVID A. NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.


This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Anders Migdaleck appeals from an order denying a motion for reduction of sentence, filed under Fed. R. Crim. P. 35 (applicable to offenses committed prior to November 1, 1987), and the subsequent denial of a motion to reconsider. The parties have briefed the issues.

Upon consideration, we find that the case must be returned to the district court. The district court's denial of the motion was clearly premised on the belief that the motion was filed beyond the applicable time frame of pre-amendment Criminal Rule 35(b). The record reflects, however, that the motion was timely (120 days after the denial of certiorari by the United States Supreme Court). Counsel for the United States concedes that the district court did have jurisdiction to entertain the motion. Our decision, of course, should not be interpreted as a reflection on the merits of the motion.

Accordingly, the district court's judgment is vacated and the case is remanded for further proceedings. Rule 9(b) (3), Rules of the Sixth Circuit.