Unpublished Dispositionunited States of America, Plaintiff-appellee, v. William Carl Dukes, Jr., Defendant-appellant, 767 F.2d 922 (6th Cir. 1985)

This matter is before the Court upon the appellant's motion for counsel. The appeal has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record, appellant's informal brief, and the motion for counsel, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The appellant is presently serving an eight year federal sentence for armed robbery. He has filed two motions pursuant to Rule 35, Federal Rules of Criminal Procedure, for reduction of his sentence. The first motion was denied on May 31, 1984, and a petition for reconsideration was also denied on August 29, 1984. The appellant has not appealed the denial of the first motion and petition for reconsideration. This appeal concerns the second motion for reduction of sentence filed on August 29, 1984 and denied on August 30, 1984. The district court denied this Rule 35 motion because it had not been filed within 120 days after Dukes' conviction had been affirmed.

Initially, the appellant appears to contest the findings of the district court in denying the first Rule 35 motion and the petition for reconsideration. He argues that the district court did not afford proper consideration of the facts in denying these motions. He is barred from presenting arguments in this context because he has not filed a timely appeal from those orders. See United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977).

Regarding the August 30 order, the motion to reduce a sentence under Rule 35 is entrusted to the district court's discretion; its ruling will not be disturbed except for a clear abuse of discretion. Gov't of Virgin Islands v. Gereau, 603 F.2d 438 (3rd Cir. 1979). The district court did not abuse its discretion. The appellant's conviction was affirmed by this Court on January 23, 1984. The mandate concerning that appeal was received by the district court on February 16, 1984. The Rule 35 motion in question was not filed until August 29, 1984, more than 120 days after mandate was received by the district court. Therefore, the district court was correct in denying the motion. Rule 35(b), Federal Rules of Criminal Procedure.

Accordingly, the motion for counsel is denied and the district court is affirmed pursuant to Rule 9(d) (3), Rules of the Sixth Circuit.