Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.united States of America, Plaintiff-appellee, v. Glenn Owen Neff, Iii, Defendant-appellant, 935 F.2d 278 (10th Cir. 1991)

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U.S. Court of Appeals for the Tenth Circuit - 935 F.2d 278 (10th Cir. 1991) June 7, 1991

Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges.


BRORBY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Neff appeals only his sentence.

Mr. Neff entered a plea of guilty to a charge of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846.

A presentence report was ordered and a hearing was held thereon as Mr. Neff had filed objections. The district court sustained Mr. Neff's objections. The result was a sentencing guideline range from 63 to 78 months. The district court sentenced Mr. Neff to 75 months.

On appeal Mr. Neff does not dispute the district court's findings as to the applicable guideline range. Mr. Neff asserts the district court misunderstood the facts of the case and points to the sentence received by a codefendant of 72 months. He contends this misunderstanding caused him to receive a sentence of three months more than his codefendant.

The sentence imposed on Mr. Neff was not imposed in violation of law, neither was it imposed as a result of an incorrect application of the sentencing guidelines. Consequently it is not reviewable. We regard United States v. Garcia, 919 F.2d 1478 (10th Cir. 1990), as being dispositive. In Garcia we held the review of reasons underlying a district court's decision to impose a sentence at a particular point within the guideline range is within the exclusive discretion of the sentencing court. Id. at 1480-82. Mr. Neff has cited to us no law to the contrary.

Based upon the decision in Garcia, we conclude that Mr. Neff's appeal must be DISMISSED.


This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3