United States v. Jones

68 F. App'x 796

Opinion

MEMORANDUM

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Roosevelt Jones appeals pro se the district court’s order denying his motion to vacate the $ 5,000 fine imposed as part of his sentence following his guilty plea conviction for possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We review de novo the district court’s assumption of jurisdiction. United States v. Bennett, 147 F.3d 912, 913 (9th Cir.1998). We vacate and remand with instructions to dismiss for lack of jurisdiction.

Under certain circumstances, the district court may modify a fine pursuant to Fed.R.Crim.P. 35 or 18 U.S.C. § 3573. See 18 U.S.C. § 3572(c). Here, the district court lacked jurisdiction to modify Jones’ fine under Rule 35 because Jones filed his motion to vacate more than four years after sentencing. See Fed.R.Crim.P. 35; United States v. Penna, 319 F.3d 509, 512 (9th Cir.2003) (seven day period to file Rule 35 motion is jurisdictional). The district court also lacked jurisdiction to modify Jones’ fine pursuant to 18 U.S.C. § 3573 because the government did not file a petition to do so. See 18 U.S.C. § 3573 (court may modify fine only upon petition of the government); United States v. Morales, 328 F.3d 1202, 1205 (9th Cir.2003).

VACATED AND REMANDED with instructions to dismiss for lack of jurisdiction.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.