Robert Kent Smith, Appellant, v. United States of America, Appellee, 868 F.2d 1019 (8th Cir. 1989)

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US Court of Appeals for the Eighth Circuit - 868 F.2d 1019 (8th Cir. 1989) Submitted Feb. 21, 1989. Decided March 9, 1989. Rehearing and Rehearing En Banc Denied April 12, 1989

Appeal from the United States District Court for the Eastern District of Missouri; George F. Gunn, Jr., Judge.

Robert Kent Smith, Springfield, Mo., pro se.

Steve Muchnick, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.

PER CURIAM.


Robert Kent Smith appeals pro se from the final order of the District Court1  for the Eastern District of Missouri dismissing Smith's second 28 U.S.C. § 2255 motion to set aside, vacate, or correct his sentence. Smith v. United States, No. 87-1859C(6) (E.D. Mo. Oct. 8, 1988) (order). For the following reasons, we affirm the order of the district court.

In February 1985 Smith was charged by indictment with two counts of possession of counterfeit United States currency and two counts of attempting to pass and sell counterfeit currency in violation of 18 U.S.C. § 472, and one count of conspiracy to manufacture, possess, and pass counterfeit currency in violation of 18 U.S.C. § 371. A jury found Smith guilty on all five counts, and he was sentenced to ten years imprisonment and five years probation upon completion of the prison sentence.

On October 9, 1987, Smith filed his second pro se motion under Sec. 2255, alleging numerous instances of prosecutorial misconduct, ineffective assistance of counsel, and violations of Fed. R. Crim. P. 32. This court previously considered and rejected these identical issues in United States v. Smith, 843 F.2d 1148 (8th Cir. 1988) (per curiam) (Smith I) .

Smith also alleged that he had not been timely notified of the district court's April 24, 1987, denial of his Fed. R. Crim. P. 35(a) motion to reduce or modify his sentence, thus violating his right to appeal. The Rule 35(a) motion was based on inaccuracies Smith perceived in the presentence investigation report (PSI) indicating that he had seven prior convictions, rather than one. Upon review of Smith I, we note that Smith did appeal the district court's September 17, 1987, denial of his Rule 35(a) motion asserting, inter alia, the identical inaccurate-PSI argument which is now before this court. In Smith I, we found Smith's argument to be without merit.

Having carefully reviewed the original file of the district court as well as appellant's brief on appeal, we find that the questions presented do not require further consideration.

Accordingly, we affirm the district court's order. See 8th Cir.R. 12(a).

 1

The Honorable George F. Gunn, United States District Judge for the Eastern District of Missouri