Paul T. Nelson, Petitioner-appellant, v. United States of America, Respondent-appellee.geoffrey C. Knapp, Etc., Petitioner-appellant, v. United States of America, Respondent-appellee, 709 F.2d 39 (11th Cir. 1983)

Paul T. Nelson and Geoffrey C. Knapp were convicted of drug offenses as members of the crew of a boat. They filed 28 U.S.C.A. Sec. 2255 motions to modify their sentences contending that they received more severe sentences than the captain of the boat, their employer, a codefendant who was convicted with them and whom they contend was more culpable than they. The district court denied both motions. This Court consolidated the separate appeals.

Although the Government points out reasons for the disparity in the sentences, we cannot concern ourselves with the merits of appellants' position for two reasons. First, the severity of a sentence within the statutory limits is not subject to review by an appellate court. United States v. Diaz, 662 F.2d 713, 719 (11th Cir. 1981); United States v. Becker, 569 F.2d 951, 965 (5th Cir.), cert. denied, 439 U.S. 865, 99 S. Ct. 188, 58 L. Ed. 2d 174 (1978), 439 U.S. 1048, 99 S. Ct. 726, 58 L. Ed. 2d 708 (1978); United States v. White, 524 F.2d 1249, 1254 (5th Cir. 1975), cert. denied, 426 U.S. 922, 96 S. Ct. 2629, 49 L. Ed. 2d 375 (1976). Second, although the sentencing process may be reviewed by the district court on a Sec. 2255 motion, the severity of a sentence within statutory limits may not be reviewed because it raises no constitutional or statutory question. See Williams v. Alabama, 403 F.2d 1019, 1020 (5th Cir. 1968) (Sec. 2254 habeas case) (sentence within statutory limit is generally not subject to constitutional attack); Castle v. United States, 399 F.2d 642, 652 (5th Cir. 1968) (Sec. 2255 case) (sentence within statutory limit is not reviewable on appeal and does not amount to a constitutional violation). These former Fifth Circuit decisions are controlling authority in this circuit. Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). Appellants seek relief solely on the basis of alleged disparity in the sentences. They do not point to error in the sentencing process and do not contend that their sentences exceed statutory limits.

AFFIRMED.