Leonard Malcolm Oeth v. United States

390 F.2d 609, 1968 U.S. App. LEXIS 7704

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 14, 1968
• Docket: 25210_1
• Status: Published

Opinion

PER CURIAM:

The appellant was convicted upon a trial by jury on charges of kidnapping and aircraft piracy in violation of 18 U.S.C.A. § 1201 and 49 U.S.C.A. § 1472, for which he was sentenced to serve concurrent terms of one and twenty years respectively. Upon direct appeal, the judgment was affirmed. Healy and Oeth v. United States, 5 Cir., 1966, 354 F.2d 1008.

After a hearing at which appellant’s attorney was present, the District Court modified the sentence to provide, pursuant to 18 U.S.C.A. § 4208(a) (2), that the appellant would be eligible for parole at such time as the Board of Parole might determine.

The sole contention of the § 2255 motion is that appellant was denied due process because he was not present at the “resentencing.” As the District Court held, Rule 43, Fed.R.Crim.P. provides that “The defendant’s presence is not required at a reduction of sentence under Rule 35.” We find no substantial issue is presented in this appeal.

Affirmed.