956 F2d 1163 United States v. Spadafore

956 F.2d 1163

UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony Donald SPADAFORE, Defendant-Appellant.

No. 91-7622.

United States Court of Appeals, Fourth Circuit.

Submitted Nov. 12, 1991.
Decided March 4, 1992.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. William M. Kidd, Senior District Judge. (CR-85-76-K)

Gregory T. Hinton, Fairmont, W.Va., for appellant.

William A. Kolibash, United States Attorney, David E. Godwin, Assistant United States Attorney, Wheeling, W.Va., for appellee.

N.D.W.Va.

AFFIRMED.

Before WIDENER, MURNAGHAN and WILKINS, Circuit Judges.

OPINION

PER CURIAM:


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1

Anthony Donald Spadafore appeals from the district court's order denying relief under Federal Rule of Criminal Procedure 35(b), applicable to offenses committed prior to November 1, 1987. Our review of the record and the district court's opinion discloses that this appeal is without merit.

2

The denial of a motion for reduction in sentence is reviewed only for abuse of discretion. United States v. Guglielmi, 929 F.2d 1001, 1004 (4th Cir.1991). We do not believe the district court abused its discretion in refusing to grant relief under Rule 35(b). There is no indication that the court failed to consider all of the evidence in sentencing Spadafore or in denying the motion. Most of the evidence referred to in the motion was before the judge at the sentencing hearing. The only new considerations presented were Appellant's continued cooperation with the Government and his behavior in prison. The district court correctly noted that such considerations as good prison conduct are more properly raised before the Parole Commission. See United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir.1975).

3

Spadafore argues that because he is ineligible for parole by virtue of his conviction under 21 U.S.C. § 848 (1988), the district court should have taken his prison conduct into account in granting relief under Rule 35. This argument overlooks the point that awarding a sentence reduction under Rule 35 for good prison conduct would undermine congressional intent that parole not be available for violations of § 848. Accordingly, we affirm.

4

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

5

AFFIRMED.