Opinion
99 Crim. 0365 (LAK)
February 22, 2000
ORDER
Defendant was convicted on a plea of guilty of one count of illegal reentry to the United States after deportation for an aggravated felony and sentenced inter alia to a term of imprisonment of 46 months, a sentence which reflected a downward departure based on the Court's view that the defendant's criminal history category overstated the seriousness of his record. Defendant now has filed a letter application and memorandum seeking a reduction in his sentence pursuant to Fed.R.Crim.P. 35(c) and asking, in the alternative, that the motion be considered as having been made pursuant to 28 U.S.C. § 2255.
Insofar as the application is made pursuant to Rule 35(c), it is entirely without merit. Judgment was entered on January 27, 2000. There was no arithmetic, technical or other clear error. In these circumstances, it is unnecessary to consider whether the motion also is untimely.
Treating the motion as having been made pursuant to 28 U.S.C. § 2255, the Court is obliged to make a preliminary examination of the motion and, if appropriate, to dismiss it summarily. Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.
The essence of defendant's claim is that the government was guilty of excessive pre-indictment delay and that this issue was not adequately presented at sentencing by defendant's counsel. There seems also to be a contention that the underlying state court conviction was not a qualifying aggravated felony.
The motion is converted into a motion pursuant to 28 U.S.C. § 2255. The Clerk shall assign an appropriate civil docket number. The government shall respond to the motion no later than March 10, 2000.
SO ORDERED.