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United States v. Horicianu

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


August 18, 2008

UNITED STATES OF AMERICA,
v.
FLORIN HORICIANU, DEFENDANT.

The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

Summary Order

On September 25, 2007, the defendant was sentenced by this court to four concurrent terms of imprisonment of one year and one day, followed by two years of supervised release for violating the terms of his supervised release on his original federal sentence.*fn1 The very same day, he filed a notice of appeal with the United States Court of Appeals for the Second Circuit, appealing this court's "judgment and sentence." (See Notice of Appeal, filed Sept. 28, 2007 (ECF Dkt. Entry No. 23). In the time since, the defendant has filed the following requests asking that this court alter or modify the sentence now on appeal:

* "Motion to Amend/Correct the Sentence," dated April 7, 2008 (ECF Dkt. Entry No. 36), requesting that the court eliminate a certain condition from his supervised release;

* "Motion for Bail," dated April 17, 2008 (ECF Dkt. Entry No. 38), seeking "bail pending the conclusion of his appeal";

* "Motion to Order Release from Prison [and/or to] Reduce Length of Supervised Release" dated April 24, 2008 (ECF Dkt. Entry No. 41), seeking a reduction in his sentence and arguing that district courts have compensated inmates for "harsh conditions" at the Metropolitan Correction Center ("MCC") by reducing their terms of imprisonment by as much as ten months;

* Letter, undated (EDF Dkt. Entry No. 45), requesting that his "motion for bail" be granted; and

* Letter, dated July 21, 2008 (ECF Dkt. Entry No. 47), requesting a hearing on the past motions and "asking for relief -- reduce the sentence based on cruel and unusual punishment."

The defendant's various requests for relief are denied for the reasons set forth below.

The defendant's sentence is now on appeal. Accordingly, this court is without jurisdiction to grant the relief he seeks. The notice of appeal he filed in this case is "an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." United States v. Finkielstain, No. 89-cr-0009(LAK), 2007 WL 4191761, at *1 (S.D.N.Y. 2007) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 68 (1982)). Notwithstanding the filing of a notice of appeal, the district court retains jurisdiction to correct a sentence pursuant to Rule 4(b)(5) of the Federal Rules of Appellate Procedure. However, none of the defendant's motions at issue here are efforts to correct his sentence.*fn2 Rather, they seek, in various ways and for different reasons, to alter or modify the sentence, which is precisely what he seeks to do in challenging the sentence on appeal. Hence, the court is without jurisdiction to entertain these requests on matters now before the Court of Appeals. Therefore, the motions are denied for lack of jurisdiction. Alternatively, even if the court had jurisdiction, it would still deny relief as the defendant's motions are without merit.

The Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438 (1962).

SO ORDERED.

DORA L. IRIZARRY United States District Judge


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