Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.David BELL, Defendant-Appellant.
No. 90-10222.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 20, 1991.* Decided Feb. 22, 1991.
Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.
MEMORANDUM**
David Bell, appearing pro se, appeals the district court's denial of his Fed. R. Crim. P. 35(a) and (b) motions for correction and reduction of his sentence following his conviction on one count of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 and two counts of bank robbery in violation of 18 U.S.C. § 2113(a).1 Bell contends that (1) his sentence was illegal because the district court violated Fed. R. Crim. P. 32(c) (3) (D) by relying on false information in connection with Bell's sentencing despite his objections, and (2) his sentence should be reduced because of the impact of the sentence on his family and his model behavior while incarcerated. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
* Rule 35(a) Motion
We review the legality of a criminal sentence de novo. United States v. Roberson, 896 F.2d 388, 390 (9th Cir. 1990).
A Fed. R. Crim. P. 32 motion can be subsumed in a Rule 35 motion if the only basis for the illegal sentence contention is that the court failed to follow the Rule 32 procedure. See id. Rule 32(c) (3) (D) provides that if the defendant alleges any factual inaccuracy in the presentence report, the district court must either make a specific finding resolving the dispute or determine that no such finding is necessary because the controverted matter will not be considered in sentencing. If the district court states that it will not consider controverted facts in imposing sentence, the record must clearly reflect that it did not rely on such facts. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 n. 2 (9th Cir. 1990).
At Bell's sentencing hearing, the district court asked whether there were any corrections or additions to the presentence report. Bell raised several objections to the presentence report. The district court clearly stated that it would not consider any of the controverted facts in imposing sentence. Thus, the district court complied with Rule 32(c) (3) (D) and Bell's Rule 35(a) motion was properly denied.2 See id.; United States v. Robertson, 901 F.2d 733, 735 (9th Cir. 1990); Roberson, 896 F.2d at 391.
II
Rule 35(b) Motion
We review the denial of a Rule 35(b) motion to reduce sentence for abuse of discretion. United States v. Thayer, 857 F.2d 1358, 1359-60 (9th Cir. 1988). On review we must determine whether the denial of the motion "was based on a consideration of relevant factors and whether there has been a clear error of judgment." United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 479 U.S. 963 (1986). "The function of Rule 35(b) is 'simply to allow the district court to decide if, on further reflection, the original sentence now seems unduly harsh.' " United States v. Smith, 650 F.2d 206, 208 (9th Cir. 1981) (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973). In essence, a Rule 35(b) motion to reduce sentence is a plea for leniency. Thayer, 857 F.2d at 1360.
Here, the district court stated that it had considered all information regarding the commission of the offenses at the time of sentencing and that no new information had been disclosed justifying a reduction of the sentence. The information considered at sentencing included the family circumstances supporting Bell's Rule 35(b) motion. Furthermore, the district court did not abuse its discretion by concluding that Bell's model prison behavior was a factor to be considered by the Parole Commission in setting a release date and not a factor to be considered by the court in modifying Bell's sentence. See, e.g., Walker v. United States, 816 F.2d 1313, 1317 (9th Cir. 1987). Thus, the district court did not abuse its discretion by denying Bell's Rule 35(b) motion. See Ruffen, 780 F.2d at 1495.
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Bell's request for oral argument is denied
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Because Bell committed his crimes before November 1, 1987, the effective date of the Sentencing Reform Act of 1984, he properly filed his motion under former Rule 35(b)
Bell was sentenced to consecutive terms of ten and twenty years imprisonment on the bank robbery counts and five years on the conspiracy count to be served concurrently. Bell appealed his conviction on May 19, 1987 and this court affirmed the judgment and conviction in an unpublished opinion dated March 28, 1989. Bell's subsequent petition for certiorari was denied on January 8, 1990.
Bell also contends on appeal that the presentence report erroneously states that he offered his drug use as an explanation for his past criminal behavior. Bell failed to raise this objection at sentencing or on direct appeal; consequently, he has waived his right to attack the presentence report through the Rule 35(a) motion. See United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990); United States v. Karp, 764 F.2d 613, 614 n. 1 (9th Cir. 1985)
To the extent that Bell's argument can be construed as a claim of ineffective assistance of counsel, he did not raise the claim below and thus we do not consider it on appeal. See Willard v. People of State of Cal., 812 F.2d 461, 465 (9th Cir. 1987). We note, however, that the record indicates that defense counsel reviewed the presentence report with Bell, made several objections to the contents of the report at the time of sentencing and otherwise competently represented Bell. See United States v. Rachels, 820 F.2d 325, 328 (9th Cir. 1987); see generally Strickland v. Washington, 466 U.S. 668, 698 (1984).
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