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United States v. Spear

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


February 27, 1979

UNITED STATES OF AMERICA, APPELLEE,
v.
RICHARD SPEAR, APPELLANT.

Appeal from the United States District Court for the Eastern District of New York.

Present: HONORABLE WILFRED FEINBERG, HONORABLE WILLIAM H. TIMBERS,HONORABLE THOMAS J. MESKILL, Circuit Judges,

This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York, and was submitted by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is AFFIRMED.

This is an appeal from an order of Judge Bramwell denying appellant's motion under Fed.R.Crim.P. 35 for a reduction in sentence. Appellant's major argument is that the district court did not consider new facts concerning the hardships caused by the sentence. Since the sentence is within the statutory limits and appellant has not shown the "exceptional circumstances" necessary to justify appellate review, we have no jurisdiction to review the sentence imposed by the district court. In any event, it appears that the district judge considered all the matters urged upon us, and we could not say that he abused his discretion assuming arguendo that the issue was properly before us. Appellant also claims that the parole commission will use erroneous and improper information in determining whether to grant him parole. However, this claim is not cognizable on a Rule 35 motion. See Dioguardi v. United States, No. 78-2058 (2d Cir. Nov. 15, 1978), slip op. at 5183. Rather, appellant must wait and seek review after a decision of the parole commission has been made with respect to his parole, if he feels that improper factors went into that decision.

19790227

© 1998 VersusLaw Inc.



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