Opinion
NO. 10-37-BAJ-CN
01-31-2012
UNITED STATES OF AMERICA v. TIMOTHY M. STRAIN
CRIMINAL ACTION
RULING
Considering the foregoing motion filed by defendant Timothy Strain ("Defendant") (doc. 93) to reduce sentence pursuant to Fed. R. Crim. P. Rule 35;
On October 19, 2010, a jury convicted Defendant of two counts of bank fraud (doc. 43) in violation of 18 U.S.C. § 1344 (doc. 6). The Court announced Defendant's sentence in open court on January 11, 2012 (doc. 88). Defendant filed this motion on January 27, 2012.
Pursuant to Fed. R. Crim. P. Rule 35(a), "[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Rule 35(c) provides that "'[sentencing' means the oral announcement of the sentence." As such, Defendant's motion is untimely.
The Court notes that Fed. R. Crim. P. Rule 45(b), entitled "Extending Time," provides that the "court may not extend the time to take any action under Rule 35, except as stated in that rule."
Moreover, the Court would not have granted Defendant's motion even if it had been filed timely. The Fifth Circuit has recently noted that "a rule 35(a) motion cannot preserve an error unless the error is arithmetical, technical, or otherwise clear." U.S. v. Henderson, 646 F.3d 223, 225 (5th Cir. 2011). A review of the record reveals no such error.
Accordingly, Defendant's motion (doc. 93) is hereby DENIED.
Baton Rouge, Louisiana, January 31, 2012.
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BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA