Opinion
No. 07-3108.
Filed On: May 21, 2008.
BEFORE: Randolph, Tatel, and Garland, Circuit Judges.
ORDER
Upon consideration of appellee's motion to dismiss or for summary affirmance, and the response thereto; and the motion for appointment of counsel; it is
ORDERED that the motion for appointment of counsel be denied. The interests of justice do not warrant appointment of counsel in this case.See 18 U.S.C. § 3006A(a)(2)(B). It is
FURTHER ORDERED that the motion to dismiss be denied. Appellant's motion for reconsideration, filed within 10 days of the order denying his motion for modification of his sentence, postponed the commencement of the appeal period. Cf. United States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995) (holding that motion for reconsideration extended time for noting appeal from judgment of conviction). See generally United States v. Ibarra, 502 U.S. 1, 6-7 (1991). Appellant timely noted an appeal after the district court denied his motion for reconsideration. It is
FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). There is no evidence that the court abused its discretion in refusing to modify appellant's sentence, see United States v. Rhodes, 145 F.3d 1375, 1377 (D.C. Cir. 1998), or in denying reconsideration of that refusal, see Glascoe v. United States, 358 F.3d 967, 969 (D.C. Cir. 2004).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.
It is ORDERED, on the court's own motion, that the mandate issued April 25, 2008 be recalled. It is
FURTHER ORDERED that the February 11, 2008 order be vacated as to No. 07-3108.