United States of America v. Roy Stocker

BLD-207
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-3986
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UNITED STATES OF AMERICA
v.
ROY STOCKER,
Appellant
________________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 89-cr-00463-1)
District Judge: Honorable James T. Giles
________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 22, 2008
Before: McKEE, RENDELL and SMITH, Circuit Judges
(Filed: October 2, 2008)
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OPINION OF THE COURT
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PER CURIAM
Roy Stocker appeals the District Court’s order denying his motion for a reduction
of sentence. For the reasons below, we will summarily affirm the District Court’s order.

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Because Stocker’s crimes were committed before November 1, 1987, the former1
version of Rule 35 is still applicable to him.
2
In February 1992, the District Court for the Eastern District of Pennsylvania
sentenced Stocker to forty years in prison and eight years special parole for his conviction
on drug charges. On August 29, 2006, the District Court granted Stocker’s motion for
correction of an illegal sentence in part and dismissed one count of the indictment without
prejudice. On December 18, 2006, Stocker filed a counseled motion for a reduction in
sentence under former Rule 35(b) of the Federal Rules of Criminal Procedure. The1
District Court denied the motion for lack of jurisdiction, and Stocker filed a timely notice
of appeal. Now proceeding pro se, he has also filed motions for the appointment of
counsel.
We exercise plenary review over the District Court’s legal conclusions. United
States v. Idone, 38 F.3d 693, 695 (3d Cir. 1994). The District Court was correct that it
lacked jurisdiction to reduce Stocker’s sentence under former Rule 35(b). Former Rule
35(b) provides, in relevant part, that “[a] motion to reduce a sentence may be made . . .
within 120 days after the sentence is imposed.” The dismissal of one count in August
2006 was not an imposition of sentence which triggered the 120-day period to file a
motion under former Rule 35(b). See United States v. Ferri, 686 F.2d 147 (3d Cir.
1982)(Order reducing sentence was not an imposition of sentence triggering the time to
file a Rule 35(b) motion). The District Court was correct that it lacked jurisdiction to

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modify the sentence under 18 U.S.C. § 4205(b).
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by
the District Court, we will summarily affirm the District Court’s order. See Third Circuit
I.O.P. 10.6. Stocker’s motions for the appointment of counsel are denied.

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