Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Eugene Szymanski, Defendant-appellant, 928 F.2d 406 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 928 F.2d 406 (6th Cir. 1991) March 14, 1991

E.D. Mich., No. 87-80292; Feikeus, J.

E.D. Mich.

AFFIRMED.

Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and WELLFORD, Senior Circuit Judge.


ORDER

Eugene Szymanski appeals from the district court's order denying his motion for a reduction or modification of his sentence. This motion will be construed as one made under Fed. R. Crim. P. 35. 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 briefs and the record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1987, Szymanski was convicted by a jury of one count of conspiracy to distribute heroin and one count of distribution of heroin. He was sentenced to fifteen years in prison, was ordered to pay a fifty dollar mandatory special assessment, and was given a five-year special parole term. This court affirmed Szymanski's conviction, and the district court denied previous requests for post-conviction relief.

Szymanski then filed a motion for reduction or modification of sentence. The district court denied this motion on the grounds that the previous post-conviction relief proceedings had denied such relief. We affirm the decision of the district court on other grounds. Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985) (per curiam).

Under the version of Fed. R. Crim. P. 35(b) in effect at the time of Szymanski's sentencing, a defendant had 120 days in which to file a motion for reduction of sentence. Here Szymanski did not file his motion until over two years after his conviction and sentence. Therefore, the district court lacked jurisdiction to entertain Szymanski's motion.

Accordingly, Szymanski's requests for counsel and for miscellaneous relief are denied. The district court's order filed October 17, 1990, is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.