United States of America, Plaintiff-appellee, v. Thomas Vetere, Defendant-appellant.united States of America, Plaintiff-appellee, v. Thomas M. Vetere, Jr., Defendant-appellant, 875 F.2d 317 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 875 F.2d 317 (4th Cir. 1989) Submitted March 22, 1989. Decided May 9, 1989. Rehearing and Rehearing In Banc Denied May 25, 1989

Before MURNAGHAN, CHAPMAN, and WILKINS, Circuit Judges.

Thomas M. Vetere, Jr., appellant pro se.

Thomas J. Ashcraft, Office of the United States Attorney, for appellee.


Thomas M. Vetere, Jr., a federal prisoner, appeals the district court's denial of his Fed. R. Crim. P. 35(b) motions in two cases which have been consolidated on appeal.

Vetere's first Rule 35 motion was denied on July 12, 1988. His notice of appeal is undated. It was filed in the district court on July 28, 1988, six days after the expiration of the 10-day appeal period established by Fed. R. App. P. 4(b).*  Vetere subsequently asked the court to accept his untimely notice of appeal, and the district court granted him an extension of time to appeal. Vetere's second Rule 35 motion was denied on August 19, 1988, and his notice of appeal was delivered to prison authorities on September 2, 1988, outside the 10-day appeal period but within the 30-day period for obtaining an extension of time to appeal. The district court granted his request for an extension of time to appeal in an order entered February 15, 1989. We therefore consider both appeals on the merits.

A motion for reduction of sentence is addressed to the sound discretion of the district court; its judgment will not be disturbed absent a clear abuse of that discretion. United States v. Stumpf, 476 F.2d 945 (4th Cir. 1973). Regarding Vetere's chief ground for his first motion, "a mere showing of disparity of sentences among co-defendants does not constitute an abuse of discretion." United States v. Herrera, 757 F.2d 144, 150 (7th Cir. 1985). Since Vetere's sentence is within statutory limits, he must show the disparity is the result of some "constitutionally impermissible motivation on the part of the trial court." United States v. Alfonso, 738 F.2d 369, 373 (10th Cir. 1984). Vetere has made no such showing; nor does he present any other ground in either of his motions which warrants the relief he asks.

In short, our examination of the record indicates that the district court did not abuse its discretion in denying the motions in these cases. Accordingly, we affirm the district court's orders denying relief under Rule 35(b).

We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

No. 88-6747 AFFIRMED.

No. 88-6833 AFFIRMED.


Although the envelope in which the notice of appeal was mailed was stamped "July 25, 1988," there is no indication that Vetere actually gave the notice of appeal to prison authorities on that day