Unpublished Dispositionunited States of America, Plaintiff-appellee. v. William Simmons, Also Known As William D. Simmons,defendant-appellant, 884 F.2d 581 (6th Cir. 1989)

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U.S. Court of Appeals for the Sixth Circuit - 884 F.2d 581 (6th Cir. 1989)

Aug. 25, 1989


Before NATHANIEL R. JONES and MILBURN, Circuit Judges and THOMAS A. HIGGINS, District Judge.* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

William Simmons, a federal prisoner, appeals the denial of a motion to correct his presentence report. Upon conviction of being a felon in possession of a firearm and a dangerous special offender, Simmons was sentenced to a total of four years in prison. He subsequently filed a motion in the trial court, seeking to challenge a statement in his presentence report that accused him of pointing a gun at a bystander just prior to his arrest. Simmons argued that the Bureau of Prisons was relying on this statement to increase his security level and thus adversely affect his conditions of confinement.

Upon consideration, we conclude that the district court's order denying this motion must be affirmed. In order to challenge statements in a presentence report, the matter must be brought to the court's attention during sentencing, and not by way of a later motion. United States v. Fry, 831 F.2d 664, 667-69 (6th Cir. 1987). Fed. R. Crim. P. 32 does not vest a court with jurisdiction to address challenges to a report made after sentencing. United States v. Sarduy, 838 F.2d 157, 158 (6th Cir. 1988).

Accordingly, the district court's order is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.

 *

The Honorable Thomas A. Higgins, U.S. District Judge for the Middle District of Tennessee, sitting by designation