United States of America, Plaintiff-appellee, v. Kamoru Kazeem, A/k/a Lateff O. Carew, A/k/a Leonard Tucker,defendant-appellant, 902 F.2d 30 (4th Cir. 1990)

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U.S. Court of Appeals for the Fourth Circuit - 902 F.2d 30 (4th Cir. 1990)

Submitted April 2, 1990. Decided April 12, 1990


Appeal from the United States District Court for the District of Maryland, at Baltimore. Paul V. Niemeyer, District Judge. (CR No. 89-76-PN)

Kamoru Kazeem, appellant pro se.

Susan Moss Ringler, Office of the United States Attorney, Baltimore, Md., for appellee.

D. Md.

AFFIRMED AS MODIFIED.

Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.

PER CURIAM:


Kamoru Kazeem, a federal prisoner sentenced under the sentencing guidelines, brought this motion for correction of sentence pursuant to Fed. R. Crim. P. 35(a). The district court denied the motion and Kazeem appealed. We find that the district court had no jurisdiction under Rule 35(a) to modify Kazeem's sentence. To the extent that Kazeem is attempting to appeal his sentence under 18 U.S.C. § 3742, the appeal is untimely.

Kazeem also claims that Fed. R. Crim. P. 32(c) (3) (D) was violated at his sentencing. Although claims which are properly brought under 28 U.S.C. § 2255 may be considered on the merits even if they are raised in a Rule 35 motion,*  this claim was waived when Kazeem failed to raise it on direct appeal. United States v. Emanuel, 869 F.2d 795 (4th Cir. 1989). Therefore, we do not reach it.

Because the district court lacked jurisdiction to consider Kazeem's motion, we modify its judgment to show that the motion was dismissed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not significantly aid the decisional process.

AFFIRMED AS MODIFIED

 *

See United States v. Santora, 711 F.2d 41 (5th Cir. 1983); 3 C. Wright Federal Practice and Procedure Sec. 583 (1982)