United States v. Amber Rae Forbes

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3352
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Amber Rae Forbes, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 13, 2004
Filed: October 1, 2004
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Before LOKEN, Chief Judge, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Amber Forbes pleaded guilty to conspiring to distribute and possessing with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. Under the
terms of her plea agreement, the government agreed to make a Federal Rule of
Criminal Procedure 35 motion for downward departure once Forbes's anticipated
cooperation was complete. At sentencing in August 2003, the government had not
yet filed its Rule 35 motion, and the district court1 sentenced Forbes to fifty-seven
months' imprisonment and three years of supervised release.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
Forbes unsuccessfully objected to the sentence, arguing that because she had
not yet finished cooperating and the Rule 35 motion could not yet be granted, the
government should have filed a motion for downward departure under U.S.S.G. §
5K1 for substantial assistance at the time of sentencing. Forbes timely filed her
appeal, arguing that the district court should have departed downward because she
had made herself available for Rule 35 assistance. Forbes also argues that the
government should have been required to file a Section 5K1 motion.
In December 2003, Forbes fulfilled her cooperation, and the government
subsequently filed a Rule 35 motion. In January 2004, the district court resentenced
Forbes to eighteen months' imprisonment and three years of supervised release.
Because Forbes has already been granted the relief she requests, we dismiss her
appeal as moot. Mark v. Nix, 983 F.2d 138, 140 (8th Cir.1993) (per curiam)
(declining to address the merits of a claim where doing so would not affect the rights
of the parties and would therefore constitute an advisory opinion).
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