Free Order on Motion to Amend/Correct - District Court of Connecticut - Connecticut

Case 3:03-cr-00223-EBB

Document 92

Filed 02/23/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA v. BERNABE DIAZ

: : : NO. 3:03CR223(EBB)

RULING ON MOTION FOR CORRECTION AND REDUCTION OF SENTENCE On July 6, 2004, defendant filed a motion, pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure, seeking an order correcting and reducing his sentence as violative of his rights under the Sixth Amendment and the holding of Blakeley v. Washington, 124 S. Ct. 2531 (2004). Defendant was sentenced on June 24, 2004. Rule 35(a)

authorizes the court, within 7 days after sentencing, to correct a sentence resulting from arithmetical, technical or other clear error. Defendant's motion was filed at 4:23 p.m. on the seventh business day after sentencing, providing no opportunity for the government to respond or for the court to consider the merits of his Blakeley argument. Defendant argues "given the national

magnitude of [the Blakeley] issue" and "to provide justice and fairness", it would be appropriate for the court to decide the motion irrespective of the jurisdictional issue of timeliness. See United States v. Werber, 51 F.3d 342, 348 (2d Cir. 1995). Defendant cites no authority for this proposition. Defendant filed a notice of appeal on July 14, 2004, which appeal raises the Blakeley issue and remains pending before the Court of Appeals. This court awaits the decision on the appeal

Case 3:03-cr-00223-EBB

Document 92

Filed 02/23/2005

Page 2 of 2

and will respond to any direction from the appellate court. The motion [Doc. No. 77] is denied. SO ORDERED.

_______________________________ ELLEN BREE BURNS, SENIOR JUDGE UNITED STATES DISTRICT COURT Dated at New Haven, CT, this ___ day of February, 2005.

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