Unpublished Dispositionunited States of America, Plaintiff-appellee, v. John W. Spencer, Defendant-appellant, 880 F.2d 1322 (6th Cir. 1989)

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and ANNA DIGGS TAYLOR, District Judge.^* 

ORDER

John W. Spencer appeals from the district court's denial of his motion for modification or reduction of sentence filed pursuant to Fed. R. Crim. P. 35. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Spencer pleaded guilty to conspiracy to distribute cocaine. He was sentenced to 41 months imprisonment. He moved for modification or reduction of sentence on the grounds of mitigating circumstances and that he had learned the error of his ways. He pleaded for the court's mercy.

The district court reviewed Spencer's motion and the presentence investigative report previously submitted and denied the motion.

Upon review we find no error. Rule 35 motions are addressed to the sound discretion of the district court. United States v. Brummett, 786 F.2d 720, 723 (6th Cir. 1986). The district court did not abuse its discretion.

The record reveals no misinformation relied on by the court in sentencing Spencer. Furthermore, in light of the possible penalty (20 years), we are not willing to hold that a sentence of 41 months is error. See United States v. Tucker, 404 U.S. 443, 447 (1972).

Accordingly, the order of the district court is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.