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904 F2d 709 United States v. Simmons D

904 F.2d 709

UNITED STATES of America, Plaintiff-Appellee,
v.
William SIMMONS, also known as William D. Simmons,
Defendant-Appellant.

No. 89-1934.

United States Court of Appeals, Sixth Circuit.

June 13, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before NATHANIEL R. JONES and RYAN, Circuit Judges and BAILEY BROWN, Senior Circuit Judge.

ORDER

1

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

William Simmons appeals the denial of his motion for correction of an illegal sentence filed under Fed.R.Crim.P. 35(a) (amended effective Nov. 1, 1987). Simmons alleged that an additional two year sentence imposed after the government successfully appealed the dismissal of a dangerous special offender (DSO) charge violates double jeopardy principles and that he is entitled to credit for time served on parole from the underlying offense pending disposition of the DSO proceeding. The district court denied Simmon's motion as without merit. Upon consideration, we conclude that the motion was properly denied.

3

The district court correctly concluded that double jeopardy is not offended where, as here, the government successfully pursues a timely appeal of the dismissal of a DSO specification and defendant is resentenced upon remand. United States v. DiFrancesco, 449 U.S. 117, 132-39 (1980). Simmon's claim for credit for time spent on parole has been abandoned on appeal. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir.1986). Also, Simmons now asserts two new claims not presented in the district court and which will not be considered in the first instance on appeal. See Wright v. Holbrook, 794 F.2d 1152, 1157 (6th Cir.1986).

4

For the foregoing reasons, and for the reasons stated by the district court in its order denying Simmon's motion entered July 19, 1989, the judgment of the district court is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.