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United States v. Lewis

filed*fn*: July 24, 1992.

UNITED STATES OF AMERICA PLAINTIFF-APPELLEE
v.
ALFONSO LEWIS, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Central District of California. D.C. No. CR-87-0404-ER-6. Edward Rafeedie, District Judge, Presiding.

Before: Browning and Farris, Circuit Judges, and Macbride,*fn** District Judge.

MEMORANDUM

Counsel for the appellant filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967) (if counsel concludes case to be frivolous, he must advise court and request permission to withdraw while at the same time present strongest possible brief in support of client's position). By this brief, Alfonso Lewis appeals from the district court's order denying his motion to reconsider its previous denial for modifications of his sentence pursuant to Fed. R. Crim. P. 35(b). Lewis was convicted of three counts of mail fraud in violation of 18 USC § 1341 and sentenced to seven years in custody. Mandate was issued on July 20, 1989 upon affirmance of the judgment. On November 30, 1989, appellant filed a Motion for Reduction of Sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure which the district court considered and denied on January 26, 1990. No appeal was taken from this ruling.*fn1 Almost six months later, on June 7, 1990, appellant filed a Motion to Reconsider the earlier denial. The district court denied this motion as well. Lewis appeals the denial of the Motion to Reconsider.

The district court lacked jurisdiction to hear the Motion to Reconsider. A motion for reduction of a lawful sentence must be filed within 120 days after sentence is imposed or after a mandate is issued by a court of appeal. Fed.R.Crim.P. 35(b). The 120 day limit is jurisdictional and cannot be extended by court order. United States v. Hetrick, 644 F.2d 752 (9th Cir. 1980). A "jurisdictional defect cannot be cured by styling the subsequent motion as a 'motion for reconsideration.'" Id. at 756. Consequently, appellant's claim is wholly frivolous.

We have independently examined the record as required by Penson v. Ohio, 488 U.S. 75, 83 (1988) and have found no appealable issues. Counsel's request to withdraw is hereby granted and the appeal is dismissed.

AFFIRMED.

Disposition

AFFIRM ...


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