United States v. Julio Gomez-Padilla

Julio Gomez-Padilla (Gomez) appeals from his sentence, imposed following a jury trial, for conspiracy to possess with intent to distribute and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 (a)(1) and 846. Gomez was resentenced upon remand from this court, and he contends that the district court erred by failing to exercise its discretion to consider his exemplary behavior in prison as a basis for reducing his sentence. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The district court originally sentenced Gomez to 136 months incarceration. We affirmed Gomez’s conviction but vacated his sentence and remanded for resentenc-ing because the district court had improperly relied on inaccurate information that Gomez had received $3,000 for his role in the offense. The district court resentenced Gomez to 136 months incarceration for reasons other than the alleged payment. It refused to consider Gomez’s good behavior in prison during the intervening two years on grounds that the applicable version of Fed.R.Crim.P. 35 (1987) barred such consideration.

Gomez argues that the district court erred by failing to exercise its discretion to take into…