United States v. Naranjo

Full title: UNITED STATES OF AMERICA, Plaintiff, v. MARCO ANTONIO NARANJO, Defendant.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Jun 15, 2015

2:12-cr-0146 KJM (E.D. Cal. Jun. 15, 2015)

Opinion

UNITED STATES OF AMERICA, Plaintiff, v. MARCO ANTONIO NARANJO, Defendant. No. 2:12-cr-0146 KJM United States District Court, E.D. California. June 15, 2015

          ORDER

          KIMBERLY J. MUELLER, District Judge.

         Defendant Marco Antonio Naranjo, proceeding pro se, has filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), ECF No. 60. Defendant relies on Amendment 782 to U.S.S.G. § 1B1.10, which lowered by two points the base offense level for most drug trafficking offenses. Plaintiff opposes the motion on ground that the pendency of defendant's direct appeal divests this court of jurisdiction to hear the motion. ECF No. 61 at 1-2. Plaintiff also contends that defendant has raised the issue of his eligibility for relief under Amendment 782 in his pending appeal. ECF No. 61 at 2.

         Defendant's appeal from his judgment and sentence is pending in the United States Court of Appeals for the Ninth Circuit as Case No. 13-10141.¹ Defendant is represented by the Office of the Federal Defender on appeal. In his opening brief, filed February 23, 2015, defendant includes a request for remand to this court for resentencing in light of Amendment 782. See Case No. 13-10141, DktEntry: 46-1 at 3, 22.² Defendant's pending appeal deprives this court of jurisdiction to consider at this time his motion to reduce his sentence. See, e.g., Stein v. Wood, 127 F.3d 1187, 1139 (9th Cir. 1997) ("As a general rule, the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal). Accordingly, defendant's motion will be denied without prejudice to its renewal, as appropriate, following disposition of his pending appeal.

1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

2 All references to page numbers in this order are to the page numbers assigned by the electronic case filing system in this court or in the Court of Appeals.

         For all of the foregoing reasons, IT IS HEREBY ORDERED that:

         1. Defendant Marco Antonio Naranjo's motion to reduce sentence, ECF No. 60, is denied without prejudice to its renewal, as appropriate, following disposition of his pending appeal Case No. 13-10141; and

         2. The Clerk of the Court is directed to send a courtesy copy of this order to Assistant Federal Defender Carolyn M. Wiggin and to the United States Court of Appeals for the Ninth Circuit.