United States of America, Plaintiff-appellee, v. Edward Allan Harsh, Defendant-appellant, 131 F.3d 149 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 131 F.3d 149 (9th Cir. 1997)

Nov. 26, 1997. Submitted November 21, 1997* San Francisco, California

Appeal from the United States District Court for the Northern District of California Fern M. Smith, District Judge, Presiding

Before: BRIGHT,**  FLETCHER, and T.G. NELSON, Circuit Judges.

Edward Allan Harsh appeals from the district court's order denying his motion pursuant to Fed. R. Crim. P. 35 to reduce the sentence imposed upon revocation of his probation. While the appeal was pending, Harsh filed a motion for remand to the district court. The Government has not opposed the motion for remand, and correctly concedes in its brief before this court that it incorrectly argued, and the district court erroneously concluded, that it was the date if the probation violation, rather than the date of the original offense, that controlled which version of Rule 35 applied to Harsh's motion for reduction. The Government also correctly concedes that, because Harsh's original offense was prior to November 1, 1987, the version of Rule 35 in effect prior to November 1, 1987. should be applied to Harsh's motion for reduction, and that under that version of Rule 35, the district court did have discretion to consider whether reduction a was warranted.

Appellant's unopposed motion fcr remand is GRANTED. The district court's order denying the Rule 35 motion is VACATED and the case is REMANDED to the district court for further proceedings.

Appellant's motion for bail pending appeal is DENIED as moot.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation