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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`CR. No. 15-4265 JCH
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`vs.
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`MATTHEW DALE SAMPLE,
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`Defendant.
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`MEMORANDUM OPINION AND ORDER
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`This matter is before the Court on Defendant’s Motion to Modify Order [Doc. 67]. In the
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`motion, Defendant Matthew Dale Sample (“Sample”) asks the Court to modify a prior order in
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`order to enable the Tenth Circuit Court of Appeals to remand this case to this district court to
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`consider whether to allow Sample to obtain an approximately $44,000 loan to pay attorney’s
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`fees.
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`BACKGROUND
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`On December 1, 2015, Sample pleaded guilty to fraud and wire fraud as charged in the
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`information. Docs. 1, 5, and 6. On March 23, 2017, this Court sentenced Sample to five years of
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`supervised release with various conditions, as well as restitution to the victims in the amount of
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`$1,086,453.62. Docs. 50, 51, 54. Among the conditions of Sample’s supervised release was that
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`he “not incur new credit charges, negotiate or consummate any financial contracts or open
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`additional lines of credit without prior approval of the probation officer.” Doc. 54. On June 1,
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`2017, the United States filed its appeal [Doc. 56] of Sample’s sentence to the United States Court
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`of Appeals for the Tenth Circuit, where the case currently resides.
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`Case 1:15-cr-04265-JCH Document 73 Filed 11/21/17 Page 2 of 3
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`On June 15, 2017, Sample filed his Motion to Modify Judgment [Doc. 59], asking the
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`Court to modify the conditions set forth in its Judgment to permit Sample to obtain a loan for a
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`little over $44,000 to cover past due and future attorney’s fees and expenses. The Government
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`opposed the motion [Doc. 62], and Sample filed a reply [Doc. 64]. On August 1, 2017, the Court
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`denied Sample’s Motion to Modify Judgment on the grounds that it lacked jurisdiction to rule
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`upon it. See Doc. 66. Thirty days later, on August 31, 2017, Sample filed the Motion to Modify
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`Order that is presently before this Court.
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`DISCUSSION
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`Sample requests relief under Rule 37(a) of the Federal Rules of Criminal Procedure,
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`which states:
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`(a) Relief Pending Appeal. If a timely motion is made for relief that the court
`lacks authority to grant because of an appeal that has been docketed and is
`pending, the court may:
`(1) defer considering the motion;
`(2) deny the motion; or
`(3) state either that it would grant the motion if the court of appeals
`remands for that purpose or that the motion raises a substantial issue.
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`Fed. R. Crim. P. 37. Rule 37 has a counterpart in the Federal Rules of Appellate Procedure,
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`which provides:
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`(a) Notice to the Court of Appeals. If a timely motion is made in the district
`court for relief that it lacks authority to grant because of an appeal that has been
`docketed and is pending, the movant must promptly notify the circuit clerk if the
`district court states either that it would grant the motion or that the motion raises a
`substantial issue.
`(b) Remand After an Indicative Ruling. If the district court states that it would
`grant the motion or that the motion raises a substantial issue, the court of appeals
`may remand for further proceedings but retains jurisdiction unless it expressly
`dismisses the appeal. If the court of appeals remands but retains jurisdiction, the
`parties must promptly notify the circuit clerk when the district court has decided
`the motion on remand.
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`Fed. R. App. P. 12.1.
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`Case 1:15-cr-04265-JCH Document 73 Filed 11/21/17 Page 3 of 3
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`After reviewing Sample’s motion, the Court concludes that cannot affirmatively state that
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`it would grant the motion to modify its judgment, nor that the motion raises a substantial issue.
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`Therefore, the Court will not modify its original Order as requested by Sample
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`IT IS THEREFORE ORDERED that Defendant’s Motion to Modify Order [Doc. 67] is
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`DENIED.
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`___________________________________
`UNITED STATES DISTRICT JUDGE
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`3
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