323 F2d 864 Jones v. United States
323 F.2d 864
Donald David JONES, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Tenth Circuit.
Oct. 10, 1963, Rehearing Denied Nov. 18, 1963.
David L. Kofoed, Denver, Colo., for appellant.
Phillips Breckinridge, Asst. U.S. Atty. (John M. Imel, U.S. Atty., with him on brief), for appellee.
Before MURRAH, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit judges.
This is an appeal from an Order of the District Court for the Northern District of Oklahoma, denying appellant-Jones' motion for reduction of sentence after affirmance on direct appeal, and after the same had become final. See: Jones v. United States, 10 Cir., 299 F.2d 661. The trial Court granted leave to appeal in forma pauperis, and counsel was appointed for appellant. In this collateral proceedings, Jones does not attack the legality of his conviction or sentence, but seeks only to modify the severity of his punishment, on the ground that the imposition of multiple sentences totalling forty (40) years was harsh and excessive, or cruel and unusual.
It is now well settled that appellate courts will not review a sentence as cruel and unusual on direct appeal, if it is within the limits fixed by a valid statute. See: Smith v. United States, 10 Cir., 273 F.2d 462; and McMurray v. United States, 10 Cir., 298 F.2d 619, cert. den., 369 U.S. 860, 82 S.Ct. 950, 8 L.Ed.2d 18. Certainly, we are not empowered to do so on collateral attack. See: Richardson v. United States, 10 Cir., 285 F.2d 751.