United States of America, Plaintiff-appellee, v. Terry J. Kohl, Defendant-appellant, 106 F.3d 410 (9th Cir. 1997)

MEMORANDUM^** 

Terry J. Kohl, a federal prisoner, appeals pro se the denial of his third motion under 28 U.S.C. § 2255, seeking to vacate the $17,500.00 fine imposed after his conviction for conspiracy to distribute cocaine. He contends that the district court should have vacated or modified the fine because it erred at sentencing in finding that he has the ability to pay, particularly while he is still in prison. We affirm the district court's denial of this claim of nonconstitutional sentencing error not raised at sentencing or on direct appeal. See United States v. Schlesinger, 49 F.3d 483, 495 (9th Cir. 1994).

We reject the government's contention that the notice of appeal was untimely because Kohl filed it more than 30 days after entry of the district court's order. See Fed. R. App. P. 4(a) (1) (60 days for appeal when United States is party).

AFFIRMED.