United States v. Jimmy Ruben Soto

793 F.2d 217

Opinions

ORDER

The government has filed a petition for rehearing, and Soto has filed a response.

The opinion filed in this case on January 3, 1986, 779 F.2d 558, is amended by deleting the last two paragraphs and substituting the following:

We decline, however, to find the sentence imposed for Count IV improper. Furthermore, we need not remand for resentencing because the record presents no evidence that the district court was influenced to give a heavier sentence under Count IV, which was the more serious violation, because of the conviction under Count I. See United States v. Ray, 731 F.2d 1361, 1368 (9th Cir.1984).

Although there is no basis in the record to support a remand for resen-tencing, if Soto believes there was error, he has the option of filing a Fed.R. Crim.P. 35(b) motion for a reduction of sentence. Rule 35(b) permits the district judge to reduce a sentence sua sponte or on motion of the defendant for up to 120 days after the underlying conviction and sentence have been affirmed on appeal.

AFFIRMED.

With the amendment as set forth above, the petition for rehearing is denied.