Unpublished Dispositionavery B. Klein, Petitioner-appellant, v. United States of America, Respondent-appellee, 861 F.2d 720 (6th Cir. 1988)

ORDER

Petitioner Klein moves to proceed in forma pauperis on appeal from the district court's order denying Klein's motion to correct an illegal sentence. Fed. R. Crim. P. 35(a). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Klein pled guilty to embezzlement and income tax evasion. He received a sentence of three years imprisonment, five years probation, and restitution. His motion to correct sentence challenges the restitution order.

The district court held that Klein's challenge to the manner of the imposition of restitution was untimely under Fed. R. Crim. P. 35(a) and (b). The court also held that the order imposing restitution was not vague, because the sentence clearly required restitution and defense counsel did not dispute the amount. Finally, the district court held that Klein's embezzlement was a continuing course of conduct subject to a restitution order under 18 U.S.C. § 3579(g) (1984), renumbered Sec. 3663 (1986). See United States v. Purther, 823 F.2d 965, 968 (6th Cir. 1987).

We agree with the conclusions of the district court. We also note that the pension fund, the victim of the fraud, can receive compensation. See United States v. Durham, 755 F.2d 511, 513-14 (6th Cir. 1985). Accordingly, the motion to proceed in forma pauperis is denied. The order of the district court is affirmed under Rule 9(b) (4), Rules of the Sixth Circuit.