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106 F3d 410 United States v. J Kohl

106 F.3d 410

UNITED STATES of America, Plaintiff-Appellee,
v.
Terry J. KOHL, Defendant-Appellant.

No. 95-35976.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 21, 1997.*
Decided Jan. 23, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: O'SCANNLAIN, LEAVY, and KLEINFELD, Circuit Judges.

1

MEMORANDUM**

2

Terry J. Kohl, a federal prisoner, appeals pro se the denial of his third motion under 28 U.S.C. § 2255, seeking to vacate the $17,500.00 fine imposed after his conviction for conspiracy to distribute cocaine. He contends that the district court should have vacated or modified the fine because it erred at sentencing in finding that he has the ability to pay, particularly while he is still in prison. We affirm the district court's denial of this claim of nonconstitutional sentencing error not raised at sentencing or on direct appeal. See United States v. Schlesinger, 49 F.3d 483, 495 (9th Cir.1994).

3

We reject the government's contention that the notice of appeal was untimely because Kohl filed it more than 30 days after entry of the district court's order. See Fed.R.App.P. 4(a)(1) (60 days for appeal when United States is party).

4

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3