OpenJurist

849 F2d 1476 United States v. Fisch

849 F.2d 1476

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
Sheldon FISCH, Defendant-Appellant.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 87-5218.

2

United States Court of Appeals, Ninth Circuit.

Submitted May 6, 1988.*
Decided June 14, 1988.

3

Before GOODWIN and CYNTHIA HOLCOMB HALL, Circuit Judges, and ALFREDO C. MARQUEZ,*** District Judge.

4

MEMORANDUM**

5

This is an appeal from denial of a "Motion for Correction of Illegal Sentence, Fed.R.Crim.P. 35" wherein Appellant alleges that the imposition of a special parole term of five years pursuant to 21 U.S.C. Sec. 841(b)(1)(A) was illegal. The motion was granted in part and denied in part. The district court had made a clerical error in the sentencing judgment and imposed the special parole term pursuant to the above section rather than Sec. 841(b)(1)(B). The district court corrected the technical error but otherwise denied relief in an order dated July 7, 1987. We find no reason to disturb the district court's order.

6

Appellant asserts the statute requiring the special parole term was repealed. The section in question was not repealed prior to Fisch's sentencing on June 6, 1985. See 21 U.S.C. Sec. 841(b) note (Supp. III 1985). Appellant claims the imposition of the special parole term violated Fed.R.Crim.Pro. 11. We do not address this issue because Fisch did not provide us with the reporter's transcript of the plea proceedings.

7

Finally, appellant claims he is entitled to enforcement of the plea agreement. Fisch failed to file an excerpt of record. The government filed an excerpt of record which includes a copy of the plea agreement. ER 40. The plea agreement specifically states that no promises were made concerning Fisch's sentence.

8

The Order of the district court is affirmed.

9

AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

***

The Honorable Alfredo C. Marquez, United States District Judge for the District of Arizona, sitting by designation