United States of America, Plaintiff-appellee, v. Gary Charles Smith, Defendant-appellant, 877 F.2d 61 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 877 F.2d 61 (4th Cir. 1989) Submitted May 10, 1989. Decided June 9, 1989

Gary Charles Smith, appellant pro se.

Morgan Eugene Scott, Jean B. Weld, Office of the United States Attorney, for appellee.

Before PHILLIPS and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Gary Charles Smith, a federal prisoner, filed a "motion for expansion of sentencing record and evidentiary hearing," contending that his pre-sentence report was disclosed to a newspaper reporter by the United States Attorney in violation of Fed. R. Crim. P. 32(c) (3) and the Freedom of Information Act (FOIA), 5 U.S.C. §§ 552 and 552a. We affirm the district court's denial of the motion.

It is unclear from Smith's complaint the specific relief sought. If he is attacking his sentence because of an alleged Fed. R. Crim. P. 32 violation, Rule 32 did not provide the district court with jurisdiction to consider Smith's collateral attack on his sentence. See United States v. Fischer, 821 F.2d 557 (11th Cir. 1987). If he is seeking a correction or reduction of sentence, the motion should have been filed pursuant to Fed. R. Crim. P. 35. However, because Smith's motion was not brought within 120 days after the direct appeal of his conviction was dismissed, it cannot be construed as a Rule 35 motion. Further, because Smith failed to pursue a Rule 32 claim in his direct appeal, the claim is waived and cannot be raised in a motion to vacate sentence under 28 U.S.C. § 2255. United States v. Emanuel, --- F.2d ----, No. 88-7122 (4th Cir. Mar. 16, 1989). Finally, if Smith is seeking relief under FOIA, he must bring his claim in accordance with the act, not in a "motion for expansion of sentencing record and evidentiary hearing."*  Accordingly, we affirm the district court. We dispense with oral argument because the dispositive issues have been decided authoritatively.



We note that the district court's opinion would not bar a FOIA action based on the alleged improper disclosure of the presentence report. Of course, we express no opinion on the merits of such an action