Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Echavarria-Olarte's request to postpone oral argument is denied as moot.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding.
Before WARDLAW, BERZON, and CLIFTON, Circuit Judges.
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.
Alvaro Julio Echavarria-Olarte appeals pro se the district court's order dismissing his request to remit the $100,000 fine imposed as part of his sentence following conviction for conspiracy to import cocaine, 21 U.S.C. § 963, conspiracy to possess cocaine, 21 U.S.C. § 846, and six counts of racketeering, 18 U.S.C. § 1952. Echavarria-Olarte contends that his criminal fine is invalid because his criminal indictment did not adequately indicate what federal law he violated.
We lack jurisdiction to review the district court's denial of Echavarria-Olarte's motions for declaratory judgment and reconsideration because Echavarria-Olarte did not file timely a tolling motion and did not file a notice of appeal from either decision within 60 days. See Atchison, Topeka, & Sante Fe Ry. Co. v. California, 102 F.3d 425, 427 (9th Cir.1996); United States v. Vaccaro, 51 F.3d 189, 191 (9th Cir.1995).
We have jurisdiction to review the district court's denial of Echavarria-Olarte's motion to recharacterize his pleading because he filed a notice of appeal within 60 days. See Vaccaro, 51 F.3d at 191. We construe Echavarria-Olarte's motion to recharacterize as a request to amend his pleading and review for an abuse of discretion. See San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095, 1103 (9th Cir.1998).
The district court properly denied Echavarria-Olarte's motion to amend his pleading
Page 308.
to bring a claim under 18 U.S.C. § 3572(d)(3) because that statute authorizes a district court to reschedule a fine payment due to a change in economic circumstances, not to remit a criminal fine. Compare 18 U.S.C. § 3572(d)(3) with 18 U.S.C. § 3573(1).
Echavarria-Olarte's motion to stay the appeal and compel the government to file an opposition brief is denied because his case was dismissed before process was served. See 28 U.S.C. § 1915(d); Resnick v. Hayes, 213 F.3d 443, 447 n. 2 (9th Cir.2000).
Echavarria-Olarte's motion for a copy of General Order 6.3(e) is granted. The clerk shall send him a copy of the rule with this disposition.
DISMISSED in part, and AFFIRMED in part.