Hargis
United States v. Hargis
Opinion
Lead Opinion
*652 MEMORANDUM *
Jeffrey Ray Hargis pled guilty to importation of methamphetamine and was sentenced. He appeals his sentence. 1 We vacate and remand.
(1) Hargis asserts that he was, in effect, denied his right to respond to the government’s Fed.R.Crim.P. 35(b) motion before the district court issued its order regarding that motion. On this record, we agree. The district court had stated that “there will be a hearing” on a Rule 35(b) motion, if one is filed. However, when one was filed, the district court did not set a hearing date, and, while Hargis did not respond, the local rules state that a response is not due until seven days before the hearing. See S.D. CahCrim. R. 47.1(c). Therefore, while we do not think it wise for a defendant to sit quietly in most instances, in this case Hargis should have been given the opportunity to respond and to have the promised hearing. Thus, we vacate the sentence and remand for that purpose.
(2) After Hargis was sentenced, the Supreme Court held that the Sentencing Guidelines are advisory, rather than mandatory. See United States v. Booker, 543 U.S. -, -, 125 S.Ct. 738, 767 , 160 L.Ed.2d 621 (2005). We therefore also remand so that the…