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United States District Court, D. Utah, Central DivisionAug 18, 2004
Case No. 2:03-CV-706 (Criminal Case No: 2:99-CR-615). (D. Utah Aug. 18, 2004)

Case No. 2:03-CV-706 (Criminal Case No: 2:99-CR-615).

August 18, 2004


On May 14, 2004, this Court denied Petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner now moves the Court to reconsider its previous decision.

Petitioner cites Fed.R.App.P. 4(a)(1) as either granting him authority to file a motion to reconsider or because he thinks it limits him to making his motion within 30 days. Whatever Petitioner's reason for citing rule 4(a)(1), Petitioner's authority to move for reconsideration is derived from Fed.R.Civ.P. 60(b), and that rule gives him a reasonable time to file, up to one year. The Court will treat this motion to reconsider as one filed pursuant to Fed.R.Civ.P. 60(b).

Petitioner reasserts in this present motion that he only pled guilty to possessing "564 grams of methamphetamine," and not to possessing a specific amount of pure methamphetamine. In Petitioner's mind, if the percent of pure methamphetamine found in his 564 grams equaled less than 500 grams pure methamphetamine, he should qualify for a lesser sentence under 21 U.S.C. § 841(b)(1)(B) rather than be subject to the mandatory 10-year minimum sentence under 21 U.S.C. § 841(b)(1)(A). However, Petitioner misunderstands 21 U.S.C. § 841(b)(1)(A), which applies to "500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers." (emphasis added). Petitioner pled guilty to that very offense, namely the offense of possessing 500 grams or more of a "mixture" of methamphetamine. Therefore, the percentage of pure methamphetamine is irrelevant. Petitioner was correctly sentenced for the crime to which he pled guilty.

As authority in support of his motion for reconsideration, Petitioner cites a case, US v. Pedro Carrasco, from the United States District Court for the District of Montana. In the Montana case, the judge instructed the jury that they could find the defendant guilty of either the greater offense under 21 U.S.C. § 841(b)(1)(A) with the 10-year mandatory minimum or a lessor included offense, that the drug amount was less than 500 grams and sentencing would be less under 21 U.S.C. § 841(b)(1)(B). The jury in that case convicted for the lesser offense. Petitioner's case, however, is distinguished from the Montana case because he did not go to trial. Instead he pled guilty to the greater offense with the 10-year mandatory minimum. Again, Petitioner was correctly sentenced for the crime to which he pled guilty.

Petitioner has also filed a second motion "to put [his] appeal on abeyance until the reconsideration motion is heard." This appears to be a motion for "Extension of Time" for appeal, pursuant to Fed.R.App.P. 4(a)(5)(A). Under that Rule, "[t]he district court may extend the time to file a notice of appeal if (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) that party shows excusable neglect or good cause." However, Petitioner has already timely filed a notice of appeal in this case, and does not, in the Court's view, need an extension. That said, the Court would rather err on the side of caution. Therefore, to the extent that Petitioner requires an extension, Petitioner has good cause for delay on appeal because he was waiting for reconsideration, and Petitioner will be allowed to file for appeal up to "10 days after the date when the order granting [this] motion is entered," Fed.R.App.P. 4(a)(5)(c).

For the foregoing reasons, the Court DENIES Petitioner's Motion to Reconsider this Court's earlier order denying Petitioner's § 2255 motion to vacate, set aside or reduce his sentence. To the extent that Petitioner's second motion to put his appeal on abeyance is viewed as a motion for Extension of Time, that motion is GRANTED. Petitioner shall have 10 days after the date when this order is entered to appeal.