United States of America, Plaintiff-appellee, v. Robert E. Verbyla, Defendant-appellant, 918 F.2d 174 (4th Cir. 1990)

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U.S. Court of Appeals for the Fourth Circuit - 918 F.2d 174 (4th Cir. 1990)

Submitted Oct. 29, 1990. Decided Nov. 19, 1990


Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. John A. MacKenzie, Senior District Judge. (CR-84-81-N)

Robert E. Verbyla, appellant pro se.

J. Phillip Krajewski, Assistant United States Attorney, Norfolk, Va., for appellee.

E.D. Va.

AFFIRMED AS MODIFIED.

Before WIDENER, PHILLIPS and WILKINSON, Circuit Judges.

PER CURIAM:


Robert E. Verbyla appeals from the district court's order which denied his "Motion to Dismiss Existing Probation," which we construe as a motion for reduction of sentence under Rule 35(b) of the Federal Rules of Criminal Procedure.*  Our review of the record discloses that the district court lacked jurisdiction to rule on the motion because it was filed more than 120 days after Verbyla's sentence was imposed. Fed. R. Crim. P. 35(b); see United States v. Jackson, 802 F.2d 712 (4th Cir. 1986). Accordingly, we affirm the district court's dismissal on modified grounds that it lacked jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED.

 *

Verbyla committed his offense prior to November 1, 1987, and thus, the "old" Rule 35(b) applies to his case