United States v. Jerry D. Smith

ORDER

The opinion filed on April 16, 1992 is hereby withdrawn.

OPINION

Defendant/Appellant Jerry D. Smith (“Smith”) appeals from the district court's order denying his motion for reduction of sentence under the pre-November 1987 version of Rule 35 of the Federal Rules of Criminal Procedure. Smith’s underlying convictions involved conspiracy to defraud the United States and its agency, the Federal Home Loan Bank Board, and the substantive offenses of wire fraud and bank fraud against a financial institution insured by the Federal Savings and Loan Insurance Corporation (“FSLIC”). On July 15, 1988, Smith was sentenced to ten (10) years’ imprisonment. His convictions were affirmed in United States v. Smith, 891 F.2d 703 , modified by 906 F.2d 385 (9th Cir.), cert. denied, — U.S. -, 111 S.Ct. 47 , 112 L.Ed.2d 23 (1990). On January 17, 1990, the district court ordered Smith to pay FSLIC restitution in the amount of $12,-792,160. An appeal from the restitution order is currently pending before this court.

In this appeal, Smith contends that the district court erred in denying the Rule 35 motion without explanation or, alternatively, that the district court’s denial of his Rule 35…