Mary C. Geddes

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, Alaska 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) NO. xxxxxxxxxxxxxxxxx

)

Plaintiff, )

)

vs. )

) MOTION FOR RE-SENTENCING

xxxxxxxxxxxxxxxxxxxxxx, ) PURSUANT TO RULE 35(C)

)

Defendant. )

____________________________________)

This motion to correct or reduce a sentence, made pursuant to Rule 35(c), is proposed because the court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of "technical or other clear error." The defect noticed by the defendant concerns the defendant's right of allocution, and the extent to which the court may have unintentionally deprived the defendant of a meaningful opportunity to speak prior to the court's determination of his sentence. Accordingly the defendant seeks to be re-sentenced.

At sentencing on November 10, 1998, the court had before it four proposed downward departures: the defendant's cultural assimilation, the defendant's extraordinary family circumstances; overrepresentation of criminal history; and the defendant's need for medical attention. Prior to asking for allocution, the court ruled on each of the downward departures - approving or denying them - and on the exact measure or extent to which the sole approved departure would be granted. Counsel did not understand these determinations to be tentative, inasmuch as this court historically has indicated when its conclusions are tentative. Contrast, United States v. Laverne, 963 F.2d 235, 237 (9th Cir.1992).

Federal Criminal Rule 32 states, "Before imposing sentence, the court must ... determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence." Fed.R.Crim.P. 32(c)(3). In other words, the defendant should be permitted to himself inform and persuade the court as to the applicability of sentencing departures, prior to the court's ruling on those matters.

In this circumstance, the court's findings with respect to the proposed departures were articulated with considerable finality prior to allocution. Thus, while the defendant was informed he could speak, the court did not suggest that it could yet be persuaded as to the downward departures. As a consequence, Mr. Herrera-Blanco was disinclined to speak at all, as it appeared to him it could make no difference. He did not, therefore, cover all of the matters that he had intended to discuss, reacting principally to the court's comments regarding his children's ability to travel internationally while unaccompanied by a parent. ⁽¹⁾ United States v. Sarno, 73 F.3d 1470, 1503( 9^th Cir. 1995)(timidity instilled in defendant by the court's demeanor at the initial stage of the proceeding significantly hindered his later efforts at allocution).

When the district court has discretion to impose a sentence shorter than the one it selected, the infringement of a defendant's right of allocution cannot be harmless error. United States v. Sarno, 73 F.3d at 1503-04, and United States v. Carper, 24 F.3d 1157, 1158, 1161-62 (9th Cir.1994).

For the above stated reasons, the court should vacate its earlier sentence and provide Mr. Herrera-Blanco with an opportunity to discuss all mitigating information with the court prior to its final sentencing determinations. See United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir.1993)(reviewing court did not know whether sentencing court would have granted further downward adjustment in defendant's offense level or departed downward from guideline range had defendant been afforded his right of allocution).

DATED this ____ day of August, 2000.

Respectfully submitted,

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

________________________________

Mary Geddes

Assistant Federal Defender

Certification:

I certify that on the _____ day of November, 1998

I hand delivered a copy of CORRECTED MOTION FOR

RE-SENTENCING PURUSANT TO RULE 35(C) to:

Karen Loeffler

Assistant United States Attorney, U.S.

Attorney's Office, 222 West Seventh Avenue,

Anchorage, AK 99513.

_______________________________________

Karen Hollingshead

Mary C. Geddes

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, Alaska 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) NO.xxxxxxxxxxx

)

Plaintiff, )

)

vs. ) AFFIDAVIT OF COUNSEL

)

xxxxxxxxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

STATE OF ALASKA )

)ss:

THIRD JUDICIAL DISTRICT )

Mary C. Geddes, being first duly sworn upon oath, deposes and states:

1. I am the attorney in the above-captioned case.

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2. All the representations contained in the attached motion are true and correct to the best of my knowledge.

FURTHER YOUR AFFIANT SAYETH NAUGHT.

_______________________________

Mary C. Geddes

SUBSCRIBED AND SWORN to before me this ____ day of August, 2000.

_______________________________

Notary Public in and for Alaska

My Commission Expires:_________

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) NO. xxxxxxxxxxxxx

)

Plaintiff, )

)

vs. ) ORDER

)

xxxxxxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

EXCLUDABLE DELAY:

Excludable delay under 18 U.S.C. § 3161(h) is found to commence

on _______ and end on __________, for a total of _________ days.

After due consideration of the Motion for Re-Sentencing Pursuant to Rule 35(c), said motion is GRANTED.

Re-sentencing is set for _______________________.

DATED this ____ August, 2000 in Anchorage, Alaska.

____________________________________ U.S. DISTRICT JUDGE/MAGISTRATE JUDGE

X:\APPS\MOTIONS\ALASKA\Post_con\RULE35.WPD

1. The defendant made these representations to his counsel who has submitted an affidavit in support of this motion.