JOSEPH H. YOUNG, District Judge.
The defendant, resentenced on April 16, 1984, to a 17-year prison term after remand from a partially successful appeal to the Fourth Circuit, has filed a motion to correct an alleged illegal sentence under Rule 35(a), Fed.R.Crim.P. As the defendant candidly admits in his memorandum, an appeal of the sentence at issue here was filed April 24, 1984. The Court has determined that it is without jurisdiction to consider the motion to correct illegal sentence because of the pendency of appeal, and the motion will, therefore, be denied.
The defendant's argument as to jurisdiction is included at page 4 of his brief:
While it is true that Rule 35 allows motions for correction of illegal sentences to be filed "at any time," courts reviewing the rule have concluded that portion of the rule refers only to the absence of any deadline for filing such a motion, not to whether a district court has jurisdiction to consider the motion while an appeal is pending. The court's discussion of this matter in the seminal case of United States v. Mack, 466 F.2d 333, 340 (D.C.Cir.), cert. denied, 409 U.S. 952, 93 S.Ct. 297, 34 L.Ed.2d 223 (1972), is instructive:
The Mack court cited a portion of 9 J. Moore, Federal Practice, ¶ 203.11 at 3-44 through 3-47 (1983), which reads as follows:
Even if the motion for correction predates the notice of appeal, one court has held that the pendency of the appeal wrests jurisdiction over a Rule 35(a) motion from the district court.
United States v. Garrett, 583 F.2d 1381, 1391 (5th Cir.1978). And even where a court concluded that it had illegally sentenced a defendant to four years when the statute authorized only a two-year maximum, the court refused to change the sentence because of the pending appeal. United States v. Ryans, 559 F.Supp. 12, 13 (E.D.Tenn.1982).
The defendant's attorney, having learned of the Court's concern over the issue of jurisdiction, has orally cited additional authority for the proposition that the Court does have jurisdiction. Relying primarily on Doyle v. United States, 721 F.2d 1195 (9th Cir.1983), the defendant maintains that none of the authority cited by the Court above is binding. Doyle does, indeed, stand for the proposition that a sentencing court "retains jurisdiction to correct sentence under Rule 35(a) while appeal is pending." 721 F.2d at 1198. However, the Doyle court also recognized the "general rule" that "filing a notice of appeal transfers jurisdiction from the district court to the court of appeals with respect to all matters involved in the appeal." 721 F.2d at 1197. In Doyle, the Ninth Circuit carved out a narrow exception to this rule under the unique circumstances in that case, where the United States Supreme Court had recently issued a decision which clearly meant that Doyle's sentence was illegal (Doyle had been convicted and sentenced on two separate counts; the Supreme Court's opinion held that one of the offenses was a "lesser included offense" of the other conviction). Noting that the purpose of the rule divesting the sentencing court of jurisdiction pending appeal is "to avoid the confusion and inefficiency of two courts considering the same issues simultaneously," id., the appeals court held that the district court had acted properly in correcting the sentence because there was no doubt about what the appeals court would order. 721 F.2d at 1198. In other words, the circuit court approved of the district court's correcting the sentence and circumventing the need for an order, remand, and resentencing.
Here, however, the issue is far from clear. This Court is of the opinion that, regardless of its determination as to the constitutionality of the 17-year sentence imposed on the defendant, an appeal would only be duplicating the efforts of the Fourth Circuit.
The defendant has also cited — orally — United States v. Schiffer, 351 F.2d 91 (6th Cir.1965), for the proposition that the appeal does not divest this Court of jurisdiction over Rule 35(a) motions. Although Schiffer does hold that the district court "had jurisdiction to correct the illegal sentence" despite a pending appeal, 351 F.2d at 96, the Sixth Circuit in that decision did not engage in any discussion of the issue whatsoever. The Court is persuaded by the rationale of Mack.
The defendant's attorney asked that the Court seek remand from the Fourth Circuit Court of Appeals. While such a procedure has been utilized by district courts in a decision cited by the defendant, United
A thorough discussion of the issues involved in this case would be superfluous in light of the Court's decision that it has no jurisdiction. The Court notes, in passing, that the arguments presented by the defendant were presented to the Court before sentencing, and they are no more persuasive now than then. If the defendant wishes to pursue his arguments as to the alleged illegality of the sentence, he must do so before the Fourth Circuit. For that reason, also, the Court denies the defendant's oral request that he be notified before a decision issues denying jurisdiction, so that he may withdraw his appeal and pursue this motion in this Court.
The defendant's motion to correct illegal sentence will be denied on the grounds this Court has no jurisdiction to consider it. Denial is, of course, without prejudice to its renewal at an appropriate time.