United States v. McFarland

88 F. App'x 216

Opinion

MEMORANDUM

**

Jack Fred McFarland appeals pro se the district court’s order denying his motion to correct the sentence imposed following his jury trial conviction on 16 drug related counts, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and (C), and 843(b) and (c). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Under the Federal Rules of Criminal Procedure the district court may correct a prisoner’s sentence if that sentence contains an arithmetical, technical or other clear error. See Fed. R.Crim. Pro. 35(a). However, the correction must take place within seven days after sentencing. See id. McFarland waited over twelve years to file a motion to correct his sentence under Rule 35.

McFarland argues that his situation is governed by the prior version of Rule 35 which allowed a defendant to move to correct an illegal sentence at any time. See United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990). This argument is unpersuasive. Because not all of the criminal activity alleged in McFarland’s indictment was completed until early 1988, McFarland is subject to the amended version of Rule 35. See United States v. Henrique, 988 F.2d 85, 86 (9th Cir.1993) (per curiam) (stating that the date on which the criminal activity ends determines which version of Rule 35 applies).

Accordingly, we affirm the district court’s denial of McFarland’s Rule 25 motion.

AFFIRMED.

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.