Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2008

USA v. Mitchell
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2174




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Recommended Citation
"USA v. Mitchell" (2008). 2008 Decisions. Paper 1364.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1364


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DLD-45                                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   ___________

                                   No. 07-2174
                                   ___________

                        UNITED STATES OF AMERICA

                                         v.

                           DAVID W. MITCHELL,
                                          Appellant
                   ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                        (D.C. Crim. No. 04-cr-00007-1J)
                   District Judge: Honorable Kim R. Gibson
                  ____________________________________

         Submitted for Possible Summary Action Pursuant to Third Circuit
                            LAR 27.4 and I.O.P. 10.6
                                November 8, 2007

             Before: BARRY, CHAGARES and ROTH, Circuit Judges

                          (Opinion filed March 28, 2008)
                                    _________

                                     OPINION
                                    _________

PER CURIAM

    David Mitchell appeals the District Court’s order denying his motion filed



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pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. On April 28, 2005,

the District Court for the Western District of Pennsylvania sentenced Mitchell to ninety-

six months in prison based on his plea of guilty to burglary of a federal firearms licensee.

On January 31, 2007, Mitchell filed a Rule 35(a) motion. The District Court denied the

motion as untimely, and Mitchell filed a timely notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291. Under Rule 35(a), the District Court

“may correct a sentence that resulted from arithmetical, technical, or other clear error”

within seven days after sentencing. Mitchell filed his Rule 35(a) motion nearly two years

after sentencing. Thus, we agree with the District Court that the motion was untimely.

       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.




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