OpenJurist

549 F2d 1342 Masterana v. United States

549 F.2d 1342

Frank Joseph MASTERANA, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 76-1996.

United States Court of Appeals,
Ninth Circuit.

March 15, 1977.

Louis Wiener, Jr., argued, Las Vegas, Nev., for petitioner-appellant.

Lawrence J. Semenza, U. S. Atty., Las Vegas, Nev., Ivan Michael Schaeffer, argued, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for respondent-appellee.

Appeal from the United States District Court for the District of Nevada.

Before WALLACE and SNEED, Circuit Judges, and GRAY,* District judge.

OPINION

PER CURIAM:

1

Masterana appeals from the trial court's denial of his "Petition To Correct Sentence." This court has jurisdiction pursuant to 28 U.S.C. § 2255. We affirm.

2

The basis for the petitioner's appeal is his apparent belief that the action by the Parole Commission, under its published "guidelines," is resulting in a longer incarceration than the district court judge had in mind at the time of sentencing. He suggests that Judge Foley probably was unaware of the provisions of the guidelines and of the effect that their application would have upon the petitioner's continued incarceration. He seeks to have this matter remanded to the district court for resentencing "with full cognizance of the Parole Board's policy," or that, alternatively, we require the district court to grant an evidentiary hearing and make findings concerning its intentions as to the length of incarceration.

3

We are not able to assume that at the time that Judge Foley imposed sentence he was unmindful of the Parole Commission guidelines, which had been published more than five months previously. However, even if this were to have been the situation, the "Petition To Correct Sentence" that the appellant submitted to the district court set out at length the manner in which the Commission exercised its discretion in extending the petitioner's incarceration beyond what he considered appropriate. Judge Foley's denial of the petition after considering such recital is sufficient indication to us that the Commission's actions were not at odds with his own views in the matter.

4

The action of the trial court in denying the petition for relief under 28 U.S.C. § 2255 is affirmed.

*

The Honorable William P. Gray, United States District Judge for the Central District of California, sitting by designation