*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 30 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JACKIE LYNN MARTIN, Defendant-Appellant. No. 97-5117 (D.C. No. 97-CR-4-1-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and BRISCOE , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Defendant Jackie Lynn Martin, proceeding in forma p auperis, appeals his sentence of life imprisonment without parole plus s ixty months, followed by five years’ supervised release, pursuant to 18 U.S.C. § 3559(c).-2-

Martin was sentenced on June 13, 1997. On June 20, 1997, he filed a motion under Fed. R. Crim. P. 35(c) with the distri ct court to correct his sentence. He contended one of his predicate convictions was v oid because the governing juvenile statute which permitted him to be sentence d as an adult had been found to be violative of the Equal Protection Clause by m andating sex-based discrimination. See Kelley v. Kaiser , 992 F.2d 1509 (10th Cir. 1993). The district court determined that since Martin had fil ed a notice of appeal on June 16, 1997, it no longer had jurisdiction and could not c onsider the motion. Martin filed a motion with this court on June 24, 1 997, requesting a remand to the district court for consideration of his Rule 35(c) motion. The government’s response filed on July 2, 1997, stated the proper p rocedure was to proceed with the appeal and that the constitutional question cou ld be decided in another proceeding. The motion was referred to the panel f or consideration after briefing on the merits. In his brief on appeal, Martin contends (1) the cas e should be remanded because one of the predicate convictions is void; ( 2) one of the predicate convictions is stale; (3) one of the predicate conv ictions did not provide the necessary maximum term of imprisonment at the time of conviction; and (4) the court erred in his criminal history calculation. T he government’s response brief specifically requests this court to grant a partial remand for the purpose of-3-

ascertaining whether one of the predicate convictio ns is void. Rule 35(c) permits the district court to correct a sentence as a result of technical, arithmetic, or other clear error within seven days of imposition of sentence. Martin was sentenced on June 13, 1997, and he filed his motion on June 20, 1997. If a defendant timely moves to corr ect a sentence pursuant to Rule 35(c), that motion renders an otherwise final ordernonfinal until the district court disposes of the motion. United States v. Libretti , 38 F.3d 523, 527 n.4 (10th Cir. 1994), aff’d516 U.S. 29 (1995). The filing of a notice of app eal does not divest a district court of jurisdiction to correct a sente nce under 35(c). See Fed. R. App. P. 4(b). This case is REMANDED to the district court for con sideration of Martin’s Rule 35(c) motion to correct sentence. As any acti on by the district court on remand will affect the issues raised and briefed in this appeal, the appeal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge