United States of America, Plaintiff-appellee, v. Montray L. Howard, Defendant-appellant, 875 F.2d 316 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 875 F.2d 316 (4th Cir. 1989) Submitted Feb. 28, 1989. Decided May 1, 1989

Montray L. Howard, appellant pro se.

Henry Edward Hudson, Office of the United States Attorney, for appellee.



Montray Howard pled guilty in 1987 to bank fraud. She was ordered to pay $200 restitution; execution of her two-year sentence was suspended and she was placed on supervised probation. In October of 1988 her probation was revoked and she is now serving a one-year prison sentence. Two motions for reduction of sentence which she filed have been denied by the district court.

In January, 1989, Ms. Howard filed a notice of appeal from the probation revocation order entered on October 7, 1988. The notice of appeal is untimely as to that order, as it was filed by a criminal defendant more than ten days after entry of the judgment appealed. Fed. R. App. P. 4(b). However, her notice of appeal is timely as to the district court's order of January 5, 1989, denying her Fed. R. Crim. P. 35 motion to reduce sentence.

Under Rule 35, a judge may in his discretion reduce a sentence within 120 days after it is imposed. See United States v. Stumpf, 476 F.2d 945 (4th Cir. 1973). As Ms. Howard was initially placed on probation but failed to abide by the conditions of her probation, we find no abuse of discretion in the district court's denial of a reduction in sentence.

Accordingly, the order of the district court is affirmed. We deny the appointment of counsel and dispense with oral argument because the dispositive issues have recently been decided authoritatively.