U.S. v. Ogelsby

Full title: UNITED STATES OF AMERICA, v. FRANKLIN OGELSBY

Court: United States District Court, S.D. Ohio, Western Division

Date published: Dec 30, 2008

NO. 1:07-CR-00135 (S.D. Ohio Dec. 30, 2008)

Opinion

NO. 1:07-CR-00135.

December 30, 2008

OPINION AND ORDER

S. SPIEGEL, Senior District Judge

This matter is before the Court on Defendant's pro se Motion to Mitigate and Downward Depart (doc. 52), to which the government filed a Response in Opposition (doc. 54).

Defendant filed the instant motion on December 11, 2008, after having been sentenced by the Court on December 3, 2008 for a period of imprisonment of forty-eight months, three years supervised release, and other penalties. Defendant seeks "to mitigate and downward depart because of Defendant's tragic personal history, . . . extreme remorse, . . . incarceration would have extraordinary effect on innocent family members . . . and diminished capacity" (doc. 54).

The government opposes Defendant's motion, arguing the Court lacks jurisdiction under Fed.R.Crim.P. 35, because such rule only allows for the correction or reduction of a sentence within seven days (doc. 54). Thus, the government argues, Defendant failed to file a timely motion (Id.). In any event, contends the government, the Court already considered the issues within the motion during the sentencing hearing, and Rule 35 was never intended to reopen issues already decided at the sentencing hearing (Id. citing United States v. Arroyo, 434 F.3d 835, 839 (6^th Cir. 2006)).

The Court finds well-taken the government's position that Defendant filed his motion too late, and thus the Court is divested of jurisdiction to consider it. Fed.R.Crim.P. 35(a). Moreover, even should the Court retain jurisdiction, the Court finds no basis in such motion for a modification of Defendant's sentence, as the Court already considered the issues Defendant raised within the motion at the sentencing hearing. Finally, the Court notes that Defendant filed a notice of appeal, and "the traditional rule is that a timely appeal divests the district court of jurisdiction to reconsider its judgment until the case is remanded by the Court of Appeals." United States v. Moss, 189 F.R.D. 354, 356 (E.D. Mich, 1999) quoting Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6^th Cir. 1993).

Accordingly, the Court DENIES Defendant's pro se Motion to Mitigate and Downward Depart (doc. 52).

SO ORDERED.