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United States v. Carrillo

filed*fn*: October 25, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAIME LOPEZ CARRILLO, DEFENDANT-APPELLANT



Appeal from the United States District Court for the District of Arizona; D.C. No. CR-86-00186-RCB; Robert C. Broomfield, District Judge, Presiding.

Sneed, Hug and Leavy, Circuit Judges.

MEMORANDUM

Jaime Lopez Carrillo appeals his sentence following conviction at jury trial for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Counsel for Carrillo filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which identified one possible issue for review: whether the district court abused its discretion by failing to reduce Carrillo's sentence following his motion to reduce sentence made pursuant to Fed. R. Crim. P. 35(b).*fn1 We have jurisdiction under 28 U.S.C. § 1291 and we grant counsel's request to withdraw and affirm the sentence.*fn2

This court reviews a denial of a Rule 35(b) motion for abuse of discretion, United States v. Thayer, 857 F.2d 1358, 1359 (9th Cir. 1988), or an abdication of discretion, United States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985). "The function of Rule 35(b) is 'simply to allow the district court to decide if, on further reflection, the original sentence now seems unduly harsh.'" United States v. Smith, 650 F.2d 206, 208 (9th Cir. 1981) (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973)). A motion to reduce sentence under Rule 35(b) is therefore essentially a plea for leniency. Thayer, 857 F.2d at 1360; United States v. Hooton, 693 F.2d 857, 859 (9th Cir. 1982).

Here, Carrillo's Rule 35(b) motion was merely a plea for leniency, making no reference to any information not previously considered by the court and offering no specific reasons. Nonetheless, the district court modified the judgment to make Carrillo eligible for parole pursuant to 18 U.S.C. § 4205(b)(2) on his possession with intent to distribute cocaine conviction.*fn3 In light of this record, we cannot say that the district court abused or abdicated its discretion by failing to reduce Carrillo's sentence. See Thayer, 857 F.2d at 1360.

AFFIRME ...


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