Opinion
Cr. No. 98-0070-E-BLW
April 27, 2000
ORDER
The Court has before it defendant's motion for continuance of the sentencing. Defendant asserts that he has not had sufficient time to prepare for sentencing. The Court disagrees. The original Presentence Report was issued in August, 1999, and the defendant filed written objections thereto in November, 1999. The defendant complains, however, that the Court's recent decision reinstating counts two and three requires a continuance. However, the Court's recent decision simply reaffirms that the original Presentence Report will govern the sentencing proceeding. The Court's decision changed nothing discussed in that original Presentence Report. The defendant had a full and fair opportunity to object to that Report, and has done so.
It is true that the Court at one point dismissed counts two and three, but the Court did not do so until after Elias filed all his objections to the original Presentence Report, which assumed that Elias would be sentenced on counts two and three. Thus, Elias has had a full opportunity to see a Presentence Report that discussed sentencing on all the counts of conviction, and he had a full opportunity to file objections to that Report. It was only after Elias filed his objections, that the Court dismissed counts two and three and then reinstated them. There is no prejudice here to Elias.
Elias also complains about the amendment of the indictment. The Court amended the indictment only to protect Elias from further prosecution in Idaho state court. The federal statute of Limitations is five years, and the indictment was brought within that time frame. This appears to be a late filed motion to dismiss rather than a motion to continue the sentencing. The Court can find nothing in this argument that would cause the Court to continue the sentencing.
Finally, Elias contends that he has had no opportunity to respond to the Government's Sentencing Memorandum. That is typical, however, in that both sides have the opportunity to file a Sentencing Memorandum, and there is no right to respond. Elias had the right and the opportunity to file his own Sentencing Memorandum, but did not do so. In any event, to ensure a level playing field, the Court will strike the Government's Sentencing Memorandum. Accordingly,
NOW THEREFORE IT IS HEREBY ORDERED, that the Emergency Motion to Continue (docket no. unassigned) is hereby DENIED.
IT IS FURTHER ORDERED, that the Government's Sentencing Memorandum is hereby stricken and will not be considered by the Court.