United States of America, Plaintiff-appellee, v. Kenneth Warrix, Defendant-appellant, 914 F.2d 250 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 914 F.2d 250 (4th Cir. 1990) Submitted Aug. 27, 1990. Decided Sept. 20, 1990

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert J. Staker, District Judge. (CR No. 88-191)

Kenneth Warrix, appellant pro se.

Joseph Francis Savage, Jr, Assistant United States Attorney, Huntington, W.Va., for appellee.

S.D.W. Va.


Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Kenneth Warrix, a federal prisoner sentenced under the sentencing guidelines, brought this motion for correction of sentence under Fed. R. Crim. P. 35(a). The district court denied the motion and Warrix appealed. We find that the district court had no jurisdiction under Rule 35(a) to modify the sentence. To the extent that Warrix is attempting to appeal his sentence, the appeal is untimely.

Warrix claims that his criminal history category was improperly calculated and that the dismissal of Count 9 by agreement of both parties while his direct appeal was pending requires recomputation of his sentence. These claims were waived when not made on appeal and are therefore not a basis for construing this motion as a 28 U.S.C. § 2255 motion. United States v. Emanuel, 869 F.2d 795 (4th Cir. 1989).

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