                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-2-2008

USA v. Stocker
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3986




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Recommended Citation
"USA v. Stocker" (2008). 2008 Decisions. Paper 418.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/418


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                                                                           BLD-207
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3986
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                  ROY STOCKER,
                                        Appellant
                             ________________________

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 89-cr-00463-1)
                       District Judge: Honorable James T. Giles
                             ________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 22, 2008

                Before: McKEE, RENDELL and SMITH, Circuit Judges

                                (Filed: October 2, 2008)
                                       _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

      Roy Stocker appeals the District Court’s order denying his motion for a reduction

of sentence. For the reasons below, we will summarily affirm the District Court’s order.
       In February 1992, the District Court for the Eastern District of Pennsylvania

sentenced Stocker to forty years in prison and eight years special parole for his conviction

on drug charges. On August 29, 2006, the District Court granted Stocker’s motion for

correction of an illegal sentence in part and dismissed one count of the indictment without

prejudice. On December 18, 2006, Stocker filed a counseled motion for a reduction in

sentence under former Rule 35(b) of the Federal Rules of Criminal Procedure.1 The

District Court denied the motion for lack of jurisdiction, and Stocker filed a timely notice

of appeal. Now proceeding pro se, he has also filed motions for the appointment of

counsel.

       We exercise plenary review over the District Court’s legal conclusions. United

States v. Idone, 38 F.3d 693, 695 (3d Cir. 1994). The District Court was correct that it

lacked jurisdiction to reduce Stocker’s sentence under former Rule 35(b). Former Rule

35(b) provides, in relevant part, that “[a] motion to reduce a sentence may be made . . .

within 120 days after the sentence is imposed.” The dismissal of one count in August

2006 was not an imposition of sentence which triggered the 120-day period to file a

motion under former Rule 35(b). See United States v. Ferri, 686 F.2d 147 (3d Cir.

1982)(Order reducing sentence was not an imposition of sentence triggering the time to

file a Rule 35(b) motion). The District Court was correct that it lacked jurisdiction to




  1
    Because Stocker’s crimes were committed before November 1, 1987, the former
version of Rule 35 is still applicable to him.

                                             2
modify the sentence under 18 U.S.C. § 4205(b).

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6. Stocker’s motions for the appointment of counsel are denied.




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