9 F. 3d 118 - United States v. Schrum

Before TACHA and EBEL, Circuit Judges, and COOK, Senior District Judge.2

Deborah Kay Schrum appeals from a district court order denying her Rule 35(b) motion for a reduction of sentence. Fed. R. Crim. P. 35(b). We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

In December 1987, Ms. Schrum pleaded guilty to one count of conspiracy in violation of 18 U.S.C. 371 and one count of possession and sale of stolen goods from an interstate shipment in violation of 18 U.S.C. 659. The district court judge placed Ms. Schrum on five years probation and ordered her to pay $8,000 in restitution. Ms. Schrum violated her probation in February 1991 when she pleaded guilty and was convicted of one count of felony theft for writing insufficient funds checks totalling nearly $10,000. See Colo.Rev.Stat. Ann. 18-4-401 (1986). She was then arrested for violating the terms of her probation. After holding a series of hearings, the district court revoked Ms. Schrum's probation and sentenced her to thirty months imprisonment. Ms. Schrum subsequently filed a Motion to Reduce Sentence pursuant to Rule 35(b). Fed.R.Crim.P. 35(b). The district court denied Ms. Schrum's 35(b) motion and this appeal followed.

Ms. Schrum first argues on appeal that the district court erred in refusing to reduce her thirty-month sentence. We review the sentencing court's decision to deny a motion to reduce only for an abuse of discretion. United States v. Hart, 922 F.2d 613, 615 (10th Cir.1990); United States v. Galoob, 573 F.2d 1167, 1170 (10th Cir.1978). In essence, a Rule 35(b) motion requests the sentencing judge to reconsider the severity of a permissible sentence--it is a plea for leniency. "[O]nce a sentencing court, for whatever reason, declines to reduce a sentence under a timely filed Rule 35 motion, the court of appeals cannot overturn the sentence imposed unless it is in excess of the maximum limits or constitutes cruel and unusual punishment." Galoob, 573 F.2d at 1171. See also United States v. Rogers, 960 F.2d 1501, 1514 (10th Cir.) ("The established rule regarding review of sentences is that, once it is determined a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.' ") (quoting Dorszynski v. United States, 418 U.S. 424 (1974)), cert. denied, 113 S.Ct. 817 (1992).

We hold that the district court's order denying Ms. Schrum's Motion to Reduce Sentence was a permissible exercise of the court's discretion. First, despite Ms. Schrum's contention that the thirty-month sentence was unduly harsh, the sentence clearly was within the statutory limits. 18 U.S.C. 3565 provides that "[i]f the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may ... (2) revoke the sentence of probation and impose any other sentence that was available ... at the time of the initial sentencing." In this case, Ms. Schrum violated a condition of her probation by committing felony theft and the district court then revoked her probation, sentencing her to thirty months. This sentence clearly was within the statutory limits because the sentence available at the time of Ms. Schrum's initial sentencing was fifteen years imprisonment. See 18 U.S.C. 371, 659 (providing for maximum possible penalties of five and ten years imprisonment respectively). Second, we note that the district court based the thirty-month sentence on individualized factors, including Ms. Schrum's personal history and her criminal recidivous tendencies. For example, the court relied on psychological evaluations, medical recommendations and the fact that Ms. Schrum had violated the terms of her probation by committing felony theft, failing to pay restitution, and returning home late on several occasions while on home detention.3 We therefore conclude that the district court did not abuse its discretion in denying Ms. Schrum's Rule 35(b) Motion to Reduce Sentence.

Ms. Schrum also asserts that her attorney's failure to directly appeal the district court's order imposing the thirty-month sentence constituted ineffective assistance of counsel. "We review de novo a determination whether an attorney's performance is so deficient that it violates a defendant's right to effective assistance." United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991).

In this case, the district court's order revoking Ms. Schrum's probation and sentencing her to thirty months imprisonment was entered on June 10, 1992. Ms. Schrum's attorney did not file a notice of appeal within ten days of the June 10, 1992 order as required by Federal Rule of Appellate Procedure 4(b). Failing to file a notice of appeal may constitute ineffective assistance of counsel. See United States v. Davis, 929 F.2d 554, 557 (10th Cir.1991). Here, however, even if her attorney's failure to file a direct appeal amounted to ineffective assistance of counsel, Ms. Schrum's loss of the right to file a direct appeal resulted in no prejudice. She still was allowed to appeal under Rule 35(b) from the sentence imposed by the district court, and in reviewing the denial of her Rule 35(b) Motion to Reduce Sentence, we already have concluded that her sentence was within the statutory limits and that the district court did not commit an abuse of discretion. Ms. Schrum's ineffective assistance of counsel argument is therefore without merit.

For the foregoing reasons, the order denying Ms. Schrum's Motion to Reduce Sentence is AFFIRMED.