Tuesday, May 31, 2005

US v. Arevalo

No. 02-50289 (5-26-05). Defendant was convicted of RICO and conspiracy and acquitted of a score of others. The district court increased his base offense level from 19 to 46 (yes, 46) because of numerous murders that were related. the court however "only" sentenced defendant to 240 mos., the stat max. Defendant timely appealed. He then, with advice of counsel, voluntarily dismissed his appeal. Seven months later, after Blakely and Ameline, appellant moved to reinstate his appeal. The 9th found that it had no jurisdiction. The motion to reinstate should be treated as a new notice of appeal, and this one was out of time. There were policy issues about why reinstating was bad, including an end run around the 10 day rule. The 9th took note of some curiosities in Fed R App Proc 4, which allows the district court to extend time, but is silent about the appellate court. There is also nothing about reinstating. Those issues are left for another day. Perhaps it didn't help defendant's case that he was "aka" as "Psycho."


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