Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Theresa Polega, Defendant-appellant, 865 F.2d 262 (6th Cir. 1988)

ORDER

The defendant moves for counsel and for in forma pauperis status on appeal from the district court's order denying the defendant's motion to reduce sentence. Fed. R. Crim. P. 35(b) (1985). 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).

In the district court, the defendant pled guilty to one count of distribution of LSD. The defendant received a sentence of four years imprisonment, a five thousand dollar fine, and three years probation. Counsel filed a Rule 35(b) motion on behalf of the defendant, alleging that her ill health entitled her to a reduction of her sentence and her fine. The district court denied the motion to reduce sentence.

In her brief on appeal, the defendant (proceeding pro se) alleges that her daughter recovered property that the district court initially ordered forfeited based on the defendant's conviction. Because this fact was not before the district court at the time of sentencing, the defendant argues that she is entitled to a reduction in sentence.

The defendant did not raise this issue in the district court. Failure to present an issue to the district court forecloses consideration of the issue on appeal. United States v. Willis, 804 F.2d 961, 963-64 (6th Cir. 1986). Even if the defendant could raise the issue, the crucial fact in this case is that the district court granted the return of property to the defendant's daughter before it entered its order denying the defendant's motion for a reduction of sentence.

The standard of review of a denial of a Rule 35 motion is abuse of discretion. United States v. Brummett, 786 F.2d 720, 722-23 (6th Cir. 1986). We hold that the district court did not abuse its discretion when it denied the motion for a reduction of sentence.

The motion for in forma pauperis status is granted. The motion for counsel is denied. The order of the district court is also affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.