United States of America, Plaintiff-appellee, v. George Paul Laroque, Defendant-appellant, 879 F.2d 863 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 879 F.2d 863 (4th Cir. 1989) Submitted: May 31, 1989. Decided: July 10, 1989. Rehearing and Rehearing In Banc Denied Aug. 8, 1989

George Paul LaRoque, appellant pro se.

Samuel Thomas Currin (Office of the United States Attorney), for appellee.

Before SPROUSE, WILKINSON and WILKINS, Circuit Judges.


George Paul LaRoque sought relief from his sentence under 28 U.S.C. § 2255 based on an alleged failure by the district court to make a finding as to each matter in the presentence report controverted by LaRoque at sentencing or a determination that the controverted matter would not be considered in imposing sentence, as required by Fed. R. Crim. P. 32(c) (3) (D). The district court summarily denied Sec. 2255 relief after a review of the prior proceedings in the case. We affirm.

Under our recent decision in United States v. Emanuel, 869 F.2d 795 (4th Cir. 1989), LaRoque may not pursue relief under 28 U.S.C. § 2255 based on alleged noncompliance with Rule 32(c) (3) (D). Moreover, upon review of the record, we conclude that his claims are not of constitutional dimension.

We note that LaRoque filed his Sec. 2255 motion within the time allowed for filing a Rule 35(a) motion to correct a sentence imposed in an illegal manner. Assuming that his Rule 32 claims could be considered under Rule 35, we nevertheless find that the district court sufficiently indicated how it would treat the controverted facts in sentencing. See United States v. Hill, 766 F.2d 856, 858 (4th Cir.), cert. denied, 474 U.S. 923 (1985).

We accordingly affirm the district court's denial of relief under 28 U.S.C. § 2255. We dispense with oral argument because the dispositive issues have recently been decided authoritatively.