914 F. 2d 256 - Durham v. United States

Before KEITH and MILBURN, Circuit Judges; and ZATKOFF, District Judge.*

James Randall Durham appeals an order of the district court which denied his motion to vacate sentence. He now moves for the appointment of counsel. Upon review of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

On December 2, 1983, pursuant to a plea agreement, Durham pleaded guilty to bank robbery in violation of 18 U.S.C. Sec. 2113(a). The District Court for the Eastern District of Kentucky then sentenced him to a term of twenty years imprisonment and ordered him to pay restitution in the amount of $20,754.75. The district court subsequently reduced the length of Durham's sentence to nineteen years of incarceration with the possibility of parole after only five years and reduced the amount of restitution to $16,058.81. Durham thereafter challenged the validity of his conviction and sentence by filing a motion to vacate pursuant to 28 U.S.C. Sec. 2255. In support of his request for that relief, he maintained that his guilty plea was involuntary because the district court had not complied with Fed.R.Crim.P. 11(c)(1) by informing him that restitution might be ordered as part of his punishment. Durham also alleged that the requirement that he pay restitution constituted a departure from the terms of the plea agreement. A magistrate, however, determined that those claims were without merit and recommended the denial of the motion to vacate sentence. Despite Durham's objections, the district court agreed and denied the motion to vacate. Durham then filed this appeal.

After a thorough review of the record, this court has concluded that the district court properly denied the motion to vacate sentence. Accordingly, the motion for appointment of counsel is denied and the district court's final order is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.