United States v. Byron Hugh Duerksen

782 F.2d 132, 1986 U.S. App. LEXIS 21453

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 23, 1986
• Docket: 85-1519
• Status: Published

Opinion

HEANEY, Circuit Judge.

Byron Hugh Duerksen appeals the district court's order denying without a hearing his motion for modification of sentence, filed pursuant to Fed.R.Crim.P. 35. We affirm.

On September 18, 1984, Duerksen pleaded guilty to one count of transportation of a forged security in violation of 18 U.S.C. § 2314. On November 19, 1984, he was sentenced to six years imprisonment. On March 29, 1985, the trial court denied his motion for a reduction of sentence. For reversal, Duerksen argues that the sentencing court relied on inaccurate or incomplete information at the time of sentencing, and that the trial court abused its discretion by imposing the six year sentence.

A defendant who contests the accuracy of the presentence report must be given an opportunity to explain or rebut this information. Orner v. United States, 578 F.2d 1276, 1279 (8th Cir.1978). The procedure for rebuttal lies within the sound discretion of the sentencing judge, and the exercise of discretion in this regard will not be overturned in the absence of plain error or an abuse of that discretion. Id. at 1279.

We find no abuse of discretion. Duerksen’s counsel sent the trial court a seven page letter explaining the presentence report. Thus, the court had benefit of both the presentence report and Duerksen’s interpretation of the report. Moreover, the transcript of the sentencing hearing indi cates that the court provided Duerksen an opportunity to rebut the information contained in the report. Nothing in the record on appeal warrants disturbing the district court’s denial of Duerksen’s motion. Accordingly, we affirm.