United States v. Salvador Alonso-Aldama

FILED
NOT FOR PUBLICATION FEB 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50104
Plaintiff - Appellee, D.C. No. 3:86-CR-00824-BTM-3
v.
MEMORANDUM *
SALVADOR ALONSO-ALDAMA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted January 12, 2010
Pasadena, California
Before: CANBY, HALL, and O’SCANNLAIN, Circuit Judges.
On May 11, 1987, Appellant Salvador Alonso-Aldama was convicted of (1)
conspiracy to import a Schedule I Controlled Substance into the United States; (2)
importation of a Schedule I Controlled Substance into the United States; (3)
conspiracy to possess, with the intent to distribute, a Schedule I Controlled
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Substance; and (4) possession, with the intent to distribute, a Schedule I Controlled
Substance. On June 25, 2008, Appellant filed a motion to reconsider his sentence
under the pre-1987 version of Federal Rule of Criminal Procedure 35(b). The
district court denied his motion, and Appellant timely appealed. This court has
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
Appellant’s Rule 35(b) motion was due by September 16, 1988, 120 days
after the district court received the Ninth Circuit mandate affirming his conviction
and sentence. Rule 35(b)’s filing deadline is jurisdictional and has been
characterized as mandatory and rigid in this circuit. United States v. Stump, 914
F.2d 170, 172 (9th Cir. 1990); United States v. Smith, 650 F.2d 206, 209 n.2 (9th
Cir. 1981); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977).
Although other circuits have extended the 120-day deadline in narrow
circumstances, Gov’t of the Virgin Islands v. Gereau, 603 F.2d 438, 442 (3rd Cir.
1979); Dodge v. Bennett, 335 F.2d 657, 658 (1st Cir. 1964); Warren v. United
States, 358 F.2d 527, 530-31 (D.C. Cir. 1965), Appellant is not entitled to
equitable tolling even under the standards set forth in those cases. Although he
was deported to Mexico prior to the denial of his appeal, nothing prevented him
from filing a Rule 35(b) motion to reduce his sentence while he was in Mexico.
He was obligated as a condition of his bond pending appeal to remain apprised of
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the status of his appeal, to remain in contact with the clerk’s office, and to remain
in the state of California. He was in contact with his lawyer and his ex-wife—who
lived in California—after he was deported, and he made no effort to reduce his
sentence through them.
Even if this circuit were to recognize an equitable tolling doctrine under the
former Rule 35(b), Appellant made no effort to file a Rule 35 motion, and the
government did not prevent him from doing so. United States v. Peltier, 312 F.3d
938, 941 (8th Cir. 2002); United States v. Blanton, 739 F.2d 209, 213 (6th Cir.
1984).
The district court therefore lacked jurisdiction to reconsider Appellant’s
sentence. Whether Appellant’s changed physical condition merits early release is a
matter within the purview of the Parole Commission. United States v. Addonizio,
442 U.S. 178, 189 (1979).
AFFIRMED.
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