Unpublished Dispositionunited States of America, Plaintiff-appellee, v. David Russell Thornsbury, Defendant-appellant.united States of America, Plaintiff-appellee, v. Donnie Thornsbury, Defendant-appellant.united States of America, Plaintiff-appellee, v. Arnold Ray Heightland, Defendant-appellant.united States of America, Plaintiff-appellee, v. James Daryl Smith, Defendant-appellant, 905 F.2d 1539 (6th Cir. 1990)

Before KRUPANSKY and ALAN E. NORRIS, Circuit Judges, and WENDELL A. MILES, Senior District Judge.^* 

ORDER

These cases have 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).

Defendants appeal from the district court's orders denying their motions for a reduction of sentence filed pursuant to Fed. R. Civ. P. 35.

Following their jury convictions, defendants filed an unsuccessful direct appeal with this court. Subsequently, defendants filed their Rule 35 motions in the district court. Heightland, Smith, and Donnie Thornsbury sought reduction of their sentences alleging that their sentences deny them due process and violate double jeopardy because they have been convicted and sentenced for the same crimes, and that their sentences are ambiguous and multiplicative. Heightland also asserted that his sentence was based on erroneous information contained in his pre-sentence investigation report. David Thornsbury cited no error of law or fact in his motion, rather he sought a reduction in sentence based upon the discretion of the trial court.

After a review of the files and records, the district court denied the motions. Defendants have filed timely appeals. In addition, Donnie and David Thornsbury have filed motions for the appointment of counsel.

Upon review, we affirm the district court's judgments denying defendants' claims challenging their sentences as violative of double jeopardy and due process and as being multiplicative. However, we vacate the district court's order denying Heightland's claim that his sentence was based on erroneous information from his pre-sentence investigation report and remand that portion of the case for further proceedings. The record does not contain the evidence necessary to assess the district court's compliance with Fed. R. Crim. P. 32(c) (3) (D). Cf. United States v. Graham, 856 F.2d 756, 762 (6th Cir. 1988), cert. denied, 109 S. Ct. 1144 (1989).

Accordingly, the motions for the appointment of counsel are hereby denied. The district court's judgments denying the Rule 35 motions of David Thornsbury, Donnie Thornsbury and James Smith are hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit. The district court's judgment relating to Heightland's claim that erroneous information from his pre-sentence investigation report was relied on at sentencing, is hereby vacated and remanded pursuant to Rule 9(b) (6), Rules of the Sixth Circuit. The district court's judgment denying Heightland's remaining claims is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.