United States of America, Plaintiff-appellee, v. Donnie Thornsbury; David Russell Thornsbury, Defendants-appellants, 972 F.2d 349 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 972 F.2d 349 (6th Cir. 1992)

Aug. 13, 1992.



These pro se appellants, Donnie and David Thornsbury, appeal the district court's order denying their Fed. R. Crim. P. 35 motion to correct sentence.

Following a jury trial, the defendants were convicted of one count of conspiracy to violate 18 U.S.C. §§ 33 and 34 and two counts of substantive violations of those statutes (endangering safety and human life by damaging and disabling a motor vehicle used in interstate commerce, resulting in death and injury) and one count of using a firearm to commit a felony, 18 U.S.C. § 924(c). Donnie Thornsbury received a total sentence of forty years and David Thornsbury received a total sentence of thirty-five years. These sentences were affirmed in 1989. See United States v. Heightland, 865 F.2d 94 (6th Cir.), cert. denied, 493 U.S. 826 (1989).

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 record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Following their first appeal, the appellants filed motions for correction of their sentences under Fed. R. Crim. P. Rule 35(b). Each of these motions was denied on January 25, 1990. On June 20, 1990, this court affirmed the denial of each of the appellants' Rule 35 motions.

The appellants thereafter jointly filed a Rule 35(a) motion to correct sentence. This motion was ultimately denied by the district court following the filing of a response by the United States. The district court dismissed appellants' Rule 35 motion upon finding that it was a successive motion, and because the appellants had not been subjected to multiple sentences in violation of their double jeopardy rights. See United States v. Kress, 944 F.2d 155, 161 (3rd Cir. 1991), cert. denied, 112 S. Ct. 1163 (1992).

On appeal, the appellants argue that the district court improperly denied their motions. As an initial matter, we recognize this appeal as brought only by Donnie and David Thornsbury as they were the only parties who signed the notice of appeal. See, e.g., Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988); Minority Employees of the Tenn. Dep't of Employ. Sec., Inc. v. Tennessee, 901 F.2d 1327, 1331-36 (6th Cir.) (en banc), cert. denied, 111 S. Ct. 210 (1990).

Upon review, we affirm the district court's denial of this Fed. R. Civ. P. 35 motion for the reasons stated in its order dated February 19, 1992. Rule 9(b) (3), Rules of the Sixth Circuit.