815 F2d 706 United States v. Maxey

815 F.2d 706

UNITED STATES of America, Plaintiff-Appellee,
v.
Stephen Leroy MAXEY, Defendant-Appellant.

No. 86-5190.

United States Court of Appeals,
Sixth Circuit.

March 16, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER


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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 agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

In this action, defendant filed a motion for the correction of sentence under Rule 35, Federal Rules of Criminal Procedure. This motion was denied as being untimely filed. Defendant's motion for reconsideration was thereafter denied and this appeal followed. On appeal the parties have briefed the issues.

3

Upon consideration, we affirm. Defendant's motion could only be considered timely if construed as a request to correct an illegal sentence under Criminal Rule 35(a). Defendant's motion cannot be so construed. The substance of his motion is not that the sentence he received was one which "the judgment of conviction did not authorize." United States v. Morgan, 346 U.S. 502, 506 (1954). Rather, he seeks resentencing because of alleged trial errors and matters not apparent on the face of the trial record. This cannot support a motion to correct an illegal sentence under Rule 35(a). Petro v. United States, 368 F.2d 807, 808 (6th Cir. 1966).

4

It is therefore ORDERED that the final order of the district court be affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.