Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

MEMORANDUM^** 

Harris was convicted, after a jury trial, on 32 counts of mail fraud, bank fraud, and interstate transportation of forged securities, in violation of 18 U.S.C. §§ 1341, 1344, and 2413. The district court sentenced Harris on only one of these 32 counts, suspending sentence on the remaining counts. Harris is to serve five years in custody followed by five years of probation. The court further ordered Harris to pay restitution totaling $1,052,250. Harris' conviction was affirmed on appeal in a memorandum disposition. United States v. Harris, 872 F.2d 1047 (9th Cir. 1990) (table).

Harris now appeals the district court's denials of his Rule 35(b) motion for a reduction in sentence, and Rule 33 motion for a new trial based on newly discovered evidence. We affirm.

This court will not disturb a district court's denial of a motion to reduce a sentence under former Rule 35(b) absent a "clear abuse of discretion." United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.) (affirming district court's refusal to reconsider its restitution order), cert. denied, 479 U.S. 963 (1986).

Harris argues that the district court failed to review his Rule 35(b) motion before denying it, and that the district court thereby denied him due process of law. Yet Harris has offered no facts to support his allegation against the district court. And a defendant is not entitled to any sort of hearing on a Rule 35 motion. United States v. Eastman, 758 F.2d 1315, 1317 (9th Cir. 1985) (amended opinion). Once defendant's written motion was filed the district court had all it needed to decide whether to grant it, deny it, or order further proceedings. Thus, the district court's quick action on the Rule 35 motion does not indicate a failure to consider it.

Harris argues that the district court abused its discretion in setting the restitution amount because the victims of his crimes have received compensation, and because he was not "unjustly enriched." Indeed, the relevant statute does provide:

The court shall not impose restitution with respect to a loss for which the victim has received or is to receive compensation, except that the court may, in the interest of justice, order restitution to any person who has compensated the victim....

18 U.S.C. § 3579(e) (1). However, insufficient facts have been presented to support Harris' claim that all of his victims have been or will be compensated. Harris' sole factual showing consists of his attorney's unsupported statement at the sentencing hearing, in reference to the damage done Wickes Corporation, that "the insurance company, I think, absorbed that loss." ER at 15.¹  The presentence report contradicts this unsupported statement and indicates that Wickes did bear the loss. See Presentencing report at paragraph 9, 13-17, 61. In these circumstances, the district court did not abuse its discretion when it ordered Harris to pay restitution to Wickes.

The defendant's contention that the order of restitution is invalid because he was not "unjustly enriched" is also without merit. Even assuming that Harris received no direct monetary benefit, this fact would not entitle Harris to a reduced restitution obligation. See United States v. Cloud, 872 F.2d 846, 856 (9th Cir.) (the net benefit obtained by defendant is not a factor that the district court must consider), cert. denied, 110 S. Ct. 561 (1989). As such, the district court did not abuse its discretion when it declined to reconsider its decision that the defendant make restitution.

Defendant also contends that his Rule 35(b) motion should have been granted because the presentence report improperly used potential losses, rather than actual losses, to compute his sentence under the guidelines.²  However, Harris' guidelines sentences were suspended; he was sentenced only for a non-guideline offense. Moreover, were we to review the use of prospective losses for guideline purposes, we would uphold such use under guidelines section 2F1.1. For 2F1.1 requires the "loss" figure to be the estimated, probable, or intended loss, rather than the actual loss. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir. 1990); United States v. Wills, 881 F.2d 823, 827 (9th Cir. 1989).

Harris also seems to argue that the parole commission illegitimately plans to use the guidelines intended "loss" figure to calculate parole eligibility for his non-guidelines offense. Harris' point seems to be that he will be confined for an unduly long period due to the parole commission's misuse of the guidelines figure. We need not consider whether or not this claim has merit. For this claim is not appropriately considered in the context of a Rule 35(b) motion; the purpose of the Rule 35(b) motion is to provide the defendant with the opportunity to plead for leniency from the district court. United States v. Eastman, 758 F.2d 1315, 1317 (9th Cir. 1985). Federal prisoners can challenge the duration of their confinement, but the appropriate mechanism is a petition for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). However, even this route is at present closed to Harris, since he has not yet exhausted his administrative remedies before the parole commission. See Martinez v. Roberts, 804 F.2d 570 (9th Cir. 1986).

Finally, Harris claims that his Rule 35(b) motion should have been granted by the district court because his current sentence is unconstitutionally excessive. Defendant's sentence is not "grossly disproportionate" to the offenses for which he was convicted. See United States v. Feldman, 853 F.2d 648, 663-64 (9th Cir. 1988), cert. denied, 489 U.S. 1030 (1989) (affirming ten year suspended sentence and $1.9 million restitution order).

The district court properly denied Harris' Rule 35(b) motion.

Harris moved for a new trial based on newly discovered evidence under Rule 33. Fed. R. Crim. P. 33. Harris now also argues that the prosecution withheld exculpatory evidence. The district court's denial of a motion for a new trial based on newly discovered evidence is reviewed for abuse of discretion. United States v. Endicott, 869 F.2d 452, 454 (9th Cir. 1989). The defendant carries a "significant burden" to show that the district court abused its discretion in denying a new trial. Id. Harris has produced no facts to support either his assertion that the prosecution withheld material exculpatory evidence, or his assertion that he possesses material newly discovered evidence. Thus, the district court did not abuse its discretion when it denied Harris' motion for a new trial. See United States v. Walgren, 885 F.2d 1417, 1427-28 (9th Cir. 1989).

The district court orders are AFFIRMED.