United States v. Darryl Young

914 F.2d 259, 1990 U.S. App. LEXIS 24449, 1990 WL 139236

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 24, 1990
• Docket: 89-2279
• Status: Unpublished

Opinion

914 F.2d 259

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Darryl YOUNG, Defendant-Appellant.

No. 89-2279.

United States Court of Appeals, Sixth Circuit.

Sept. 24, 1990.

Before KRUPANSKY and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge.

ORDER

The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Darryl Young appeals from a district court order denying his motion to require the district court to comply with Fed.R.Crim.P. 32(c)(3)(D). Young alleged that the court erred by failing to make factual findings in response to his objections to factual inaccuracies made in his presentence report, such objections having been filed with that court pursuant to Fed.R.Crim.P. 32(c)(3)(A).

Upon review, we conclude that the order should be vacated and the matter remanded, as the district court was without jurisdiction to hear the motion filed under Fed.R.Crim.P. 32(c)(3)(D). United States v. Sarduy, 838 F.2d 157, 158 (6th Cir.1988). Under Sarduy, a post-judgment challenge to a sentence based on a Rule 32 violation must be presented in a direct criminal appeal or in a proceeding authorized under 28 U.S.C. Sec. 2255.

Therefore, Young's request to proceed in forma pauperis is granted, the district court's order is vacated, and the case is hereby remanded to the district court to dismiss for lack of jurisdiction or to permit Young to amend his motion and attempt to assert a Sec. 2255 claim. Rule 9(b)(6), Rules of the Sixth Circuit.