1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:10-cr-05016-H Document 1791 Filed 11/04/24 PageID.8562 Page 1 of 5
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 10-cr-05016-H-1
`
`ORDER DENYING DEFENDANT’S
`MOTION TO CORRECT
`SENTENCE PURSUANT TO
`FEDERAL RULE OF CRIMINAL
`PROCEDURE 35(a)
`
`[Doc. No. 1790.]
`
`UNITED STATES OF AMERICA,
`Plaintiff,
`
`v.
`MICHAEL EDWARD OTTINGER, JR.
`(1),
`
`Defendant.
`
`
`
`On October 24, 2024, Defendant Michael Edward Ottinger, Jr., proceeding pro se,
`filed a motion to correct his sentence pursuant to Federal Rule of Criminal Procedure 35(a).
`(Doc. No. 1790.) For the reasons below, the Court denies Defendant’s Rule 35(a) motion.
`On October 6, 2011, the Government filed a second superseding indictment charging
`Defendant, among others, with one count of conspiracy to distribute methamphetamine in
`violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. No. 46.) On June 4, 2012, Defendant,
`pursuant to a plea agreement, pled guilty before the Magistrate Judge to the single count
`of conspiracy to distribute methamphetamine charged in the second superseding
`indictment. (Doc. Nos. 641, 647, 652.) On June 7, 2012, the Magistrate Judge issued her
`findings and recommendation, finding that Defendant’s plea of guilty was made knowingly
`
`1
`
`10-cr-05016-H-1
`
`
`

`

`Case 3:10-cr-05016-H Document 1791 Filed 11/04/24 PageID.8563 Page 2 of 5
`
`
`and voluntarily; Defendant was competent to enter a plea; and there was a factual basis for
`Defendant’s plea, and recommending that this Court accept Defendant’s guilty plea. (Doc.
`No. 643). On June 21, 2012, this Court adopted the findings and recommendation of the
`Magistrate Judge and accepted the Defendant’s guilty plea to count 1 of the second
`superseding indictment. (Doc. No. 701.)
`On December 3, 2012, the Court sentenced Defendant to a custodial term of 262
`months (21 years and 10 months) followed by five years of supervised release. (Doc. Nos.
`998, 1018.) The Court entered a judgment on December 5, 2012. (Doc. No. 1018.)
`On November 18, 2013, Defendant filed a motion to vacate, set aside, or correct his
`sentence under 28 U.S.C. § 2255 on the grounds of ineffective assistance of counsel. (Doc.
`No. 1254.) On July 7, 2014, the Court denied Defendant’s § 2255 motion, and the Court
`denied Defendant a certificate of appealability. (Doc. No. 1450.) Defendant appealed the
`Court’s July 7, 2014 order to the United States Court of Appeals for the Ninth Circuit.
`(Doc. No. 1455.) On March 13, 2015, the Ninth Circuit denied Defendant’s request for a
`certificate of appealability. (Doc. No. 1535.) On December 15, 2020, the Court granted
`Defendant’s motion to compel U.S. Probation to amend his presentence report (“PSR”).
`(Doc. No. 1681.)
`On September 22, 2022, Defendant filed his first motion for compassionate release
`under 18 U.S.C. § 3582(c)(1)(A)(i). (Doc. No. 1739.) In support of his first motion for
`compassionate release, Defendant argued that two “extraordinary and compelling reasons”
`were present in his case. (Doc. No. 1739-1 at 1–2; Doc. No. 1761 at 1.) First, Defendant
`contended that the sentence he received containing a “career offender” enhancement is
`grossly disproportionate to the sentence he would have received had he been sentenced
`following the passage of the First Step Act. (Id.) Second, Defendant argued that his age
`and pre-existing medical conditions placed him at an increased risk of serious illness or
`death should he contract COVID-19. (Id. at 2.)
`
`On April 17, 2023, the Court denied Defendant’s first motion for compassionate
`release. (Doc. No. 1764.) In the order, the Court concluded that there were no
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`2
`
`10-cr-05016-H-1
`
`
`

`

`Case 3:10-cr-05016-H Document 1791 Filed 11/04/24 PageID.8564 Page 3 of 5
`
`
`“extraordinary and compelling reasons” that would warrant a sentencing reduction. (See
`id. at 5–11, 14.) As to Defendant’s argument regarding the First Step Act, the Court
`explained that the argument failed because even if the Court had sentenced Defendant after
`the passage of the First Step Act in 2018, he still would have qualified for a “career
`offender” enhancement under § 4B1.1(b)(1) resulting in an adjusted offense level of 37,
`and, therefore, the Court would have made the exact same sentencing calculations that it
`did in determining his sentence. (See id. at 5–11.) As to Defendant’s argument regarding
`the COVID-19 pandemic, the Court noted that Defendant had received consistent treatment
`for his medical conditions, including receiving both doses of the Pfizer COVID-19 vaccine
`along with the Moderna booster, and that Defendant had contracted and recovered from
`COVID-19. (Id. at 11.) Thus, the Court concluded that Defendant’s pre-existing medical
`conditions coupled with the COVID-19 pandemic were not an extraordinary and
`compelling reason to reduce his sentence. (Id.) In addition, the Court denied Defendant’s
`first motion for compassionate release on the additional ground that after considering and
`weighing the § 3553(a) factors, the requested sentencing reduction was not warranted under
`the particular circumstances of Defendant’s case. (See id. at 12–14.)
`On May 8, 2023, Defendant appealed the Court’s April 17, 2023 order denying his
`first motion for compassionate release to the Ninth Circuit. (Doc. No. 1765.) The Ninth
`Circuit subsequently dismissed that appeal for failure to prosecute. (Doc. No. 1777.)
`
`On October 6, 2023, Defendant filed a second motion for compassionate release
`under 18 U.S.C. § 3582(c)(1)(A)(i). (Doc. No. 1768.) In his second motion for
`compassionate release, Defendant argued that that an “extraordinary and compelling
`reasons” was present in his case because, under the Ninth Circuit’s recent decision in
`United States v. Castillo, 69 F.4th 648 (9th Cir. 2023), he would not qualify as a “career
`offender” had he been sentenced today, meaning that he would receive a much lower
`sentence than the sentence the Court imposed. (Id. at 3-4, 12-21.)
`
`On December 18, 2023, the Court denied Defendant’s second motion for
`compassionate release. (Doc. No. 1775.) The Court first denied Defendant’s second
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`3
`
`10-cr-05016-H-1
`
`
`

`

`Case 3:10-cr-05016-H Document 1791 Filed 11/04/24 PageID.8565 Page 4 of 5
`
`
`motion for compassionate release on the ground that after considering and weighing the §
`3553(a) factors, the requested sentencing reduction was not warranted under the particular
`circumstances of Defendant’s case. (See id. at 5–7 (citing Doc. No. 1764 at 12–13).) In
`addition, the Court denied Defendant’s second motion for compassionate release on the
`ground that he failed to demonstrate an extraordinary and compelling reason that would
`warrant a sentencing reduction. (See id. at 7–15.) Specifically, the Court explained that
`the Ninth Circuit’s decision in Castillo did not constitute an extraordinary and compelling
`reason because “even if the Court were to sentence Defendant under the current law and
`following the Ninth Circuit’s decision in Castillo, Defendant would still qualify for a
`‘career offender’ enhancement under § 4B1.1(b)(1) resulting in an adjusted offense level
`of 37, and the Court would still make the same sentencing calculations that it did in
`determining his sentence.” (Id. at 14.)
`
`On January 3, 2024, Defendant appealed the Court’s order denying his second
`motion for compassionate release to the Ninth Circuit. (Doc. No. 1778.) On August 20,
`2024, the Ninth Circuit affirmed the Court’s order denying Defendant’s second motion for
`compassionate release. (Doc. No. 1789.) In the affirmance order, the Ninth Circuit stated:
`“The record reflects that the court fully considered appellant’s arguments and did not abuse
`its discretion in concluding that they did not support relief under § 3582(c)(1)(A).” (Id.)
`
`By the present motion, Defendant moves pursuant to Federal Rule of Criminal
`Procedure 35(a) to correct his sentence. (Doc. No. 1790 at 1, 6.) In his Rule 35(a) motion,
`Defendant again argues that his sentence should be corrected in light of the Ninth Circuit’s
`recent decision in Castillo. (See id. at 2.)
`
`“‘A federal court generally “may not modify a term of imprisonment once it has
`been imposed.”’” United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021) (quoting
`Dillon v. United States, 560 U.S. 817, 819 (2010); 18 U.S.C. § 3582(c)); accord United
`States v. Tadio, 663 F.3d 1042, 1046 (9th Cir. 2011); see also United States v. Barragan-
`Mendoza, 174 F.3d 1024, 1028 (9th Cir. 1999) (“[D]istrict courts do not have ‘inherent
`authority’ to reconsider sentencing orders.”). “A court may modify such a sentence only
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`4
`
`10-cr-05016-H-1
`
`
`

`

`Case 3:10-cr-05016-H Document 1791 Filed 11/04/24 PageID.8566 Page 5 of 5
`
`
`‘to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules
`of Criminal Procedure.’” United States v. Aguilar-Reyes, 653 F.3d 1053, 1055 (9th Cir.
`2011) (quoting 18 U.S.C. § 3582(c)(1)(B)).
`Federal Rule of Criminal Procedure 35(a) is entitled “Correcting Clear Error” and
`provides: “Within 14 days after sentencing, the court may correct a sentence that resulted
`from arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a). Rule 35(a)
`“defines ‘sentencing’ as ‘the oral announcement of the sentence.’” United States v. JDT,
`762 F.3d 984, 1005 (9th Cir. 2014) (quoting Fed. R. Crim. P. 35(c)). The Ninth Circuit
`has held that Rule 35(a)’s “fourteen-day period to correct a sentence for arithmetical,
`technical, or other clear error is jurisdictional, and that a district court cannot adjust a
`sentence outside of the fourteen-day window even if the Rule 35(a) motion is filed within
`that window.” Id.; see Aguilar-Reyes, 653 F.3d at 1055 (“This and other circuit courts
`have held that the fourteen-day deadline is jurisdictional, thus divesting the district court
`of the power to amend the sentence after fourteen days.”).
`
`In this case, the Court sentenced Defendant on December 3, 2012. (See Doc. No.
`998.) In light of this, the fourteen-day window to correct Defendant’s sentence pursuant
`to Rule 35(a) closed on December 17, 2012 – over a decade ago. As such, the Court lacks
`jurisdiction to consider Defendant’s Rule 35(a) motion, and, therefore, the Court denies
`Defendant’s Rule 35(a) motion. See JDT, 762 F.3d at 1005; Aguilar-Reyes, 653 F.3d at
`1055; see, e.g., United States v. Anderson, No. 1:22-CR-00163-DCN, 2023 WL 5401324,
`at *1 (D. Idaho Aug. 21, 2023) (“Here, the fourteen-day window has long since closed. As
`such, the Court lacks jurisdiction to decide [defendant]’s Motion.”).
`IT IS SO ORDERED.
`
`DATED: November 4, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`MARILYN L. HUFF, District Judge
`UNITED STATES DISTRICT COURT
`
`
`
`5
`
`10-cr-05016-H-1
`
`
`