United States of America, Plaintiff-appellee, v. Elgin B. Mcelreath, Jr., Defendant-appellant, 412 F.2d 847 (10th Cir. 1969)

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U.S. Court of Appeals for the Tenth Circuit - 412 F.2d 847 (10th Cir. 1969) June 18, 1969

Bernard V. Borst, Asst. U. S. Atty. (Benjamin E. Franklin, U. S. Atty., and John R. Martin, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

William T. Tinker, Wichita, Kan., for defendant-appellant.

Before BREITENSTEIN, HILL, and HOLLOWAY, Circuit Judges.


Defendant-appellant McElreath pleaded guilty to the interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. §§ 2312 and 2. He was sentenced to a term of four years with parole eligibility to be determined under 18 U.S.C. § 4208 (a) (2). The only point raised on this appeal is that the sentence is harsh and excessive.

The record shows that the defendant was represented by competent counsel and knowingly and voluntarily entered a plea of guilty. The sentence was within the five-year maximum authorized by 18 U.S.C. § 2312. We have repeatedly held that a sentence within the statutory limits is invulnerable to attack on appellate review. Hall v. United States, 10 Cir., 404 F.2d 1365, 1366; Davidson v. United States, 10 Cir., 411 F.2d 75; and Little v. United States, 10 Cir., 409 F.2d 1343. Counsel for defendant argues that appellate control of sentences is permitted by 28 U.S.C. § 2106. This contention was specifically rejected in Smith v. United States, 10 Cir., 273 F.2d 462, 467-468, cert. denied 363 U.S. 846, 80 S. Ct. 1619, 4 L. Ed. 2d 1729.