United States v. Kenneth Malcolm Riffe

Fifth Circuit

United States v. Kenneth Malcolm Riffe

550 F.2d 1013, 1977 U.S. App. LEXIS 13836

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 14, 1977

Docket76-4151

StatusPublished

Cited by5 cases

This text of 550 F.2d 1013 (United States v. Kenneth Malcolm Riffe) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Kenneth Malcolm Riffe, 550 F.2d 1013, 1977 U.S. App. LEXIS 13836 (5th Cir. 1977).

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Opinion

*1014 PER CURIAM:

Kenneth Riffe appeals the denial of a motion to reduce his sentence pursuant to Rule 35, F.R.Crim.P. He was convicted upon a plea of guilty to delivering cocaine in violation of 21 U.S.C. § 841(a)(1), and this court affirmed. See United States v. Riffe, 536 F.2d 1386 (5th Cir. 1976) (R. 21). Neither on direct appeal nor in the district court on his Rule 35 motion did appellant raise the issue of the invalidity of his guilty plea. He now asserts that the trial court failed correctly to perform its Rule 11 functions and that he was erroneously informed of a maximum penalty for the charged crime that in fact exceeded the statutory maximum.

At the hearing below on his Rule 35 motion, appellant not only failed to raise these issues, but he failed to question the validity of his conviction on any ground, seeking only to mitigate his sentence. Moreover, the grounds asserted for mitigation did not suggest the invalidity of the plea. Although under some circumstances a Rule 35 motion to reduce sentence will be construed as a motion to vacate sentence pursuant to 28 U.S.C. § 2255, appellant did not seek such an interpretation.

The question whether the guilty plea was invalid is hence not properly before this court, and we decline to pass on this matter. We refuse to find fault with the trial court’s ruling on the Rule 35 motion on a basis never presented to it, and upon which that court had no reason to require further factual development. No such exceptional circumstances exist in the case at bar that would warrant departing from this principle in order to avoid a miscarriage of justice. See United States v. Grene, 455 F.2d 376, 378 (5th Cir.), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972); United States v. Hall, 440 F.2d 1277, 1278 (5th Cir. 1971); United States v. Hunter, 417 F.2d 296, 297 (5th Cir. 1969); Potter v. United States, 304 F.2d 664, 666 (8th Cir. 1962). 1 Appellant is free to use other procedural devices to attack his conviction, though we intimate no conclusions regarding the merits of his claim. The judgment of the district court is

AFFIRMED.

1

. Cf. United States v. Resnick, 483 F.2d 354, 358 (5th Cir.) cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973) (question raising for first time on appeal the possibility of unconstitutional sentence was required to be passed on first by trial court pursuant to Rule 35).

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*1014 PER CURIAM:

Kenneth Riffe appeals the denial of a motion to reduce his sentence pursuant to Rule 35, F.R.Crim.P. He was convicted upon a plea of guilty to delivering cocaine in violation of 21 U.S.C. § 841(a)(1), and this court affirmed. See United States v. Riffe, 536 F.2d 1386 (5th Cir. 1976) (R. 21). Neither on direct appeal nor in the district court on his Rule 35 motion did appellant raise the issue of the invalidity of his guilty plea. He now asserts that the trial court failed correctly to perform its Rule 11 functions and that he was erroneously informed of a maximum penalty for the charged crime that in fact exceeded the statutory maximum.

At the hearing below on his Rule 35 motion, appellant not only failed to raise these issues, but he failed to question the validity of his conviction on any ground, seeking only to mitigate his sentence. Moreover, the grounds asserted for mitigation did not suggest the invalidity of the plea. Although under some circumstances a Rule 35 motion to reduce sentence will be construed as a motion to vacate sentence pursuant to 28 U.S.C. § 2255, appellant did not seek such an interpretation.

The question whether the guilty plea was invalid is hence not properly before this court, and we decline to pass on this matter. We refuse to find fault with the trial court’s ruling on the Rule 35 motion on a basis never presented to it, and upon which that court had no reason to require further factual development. No such exceptional circumstances exist in the case at bar that would warrant departing from this principle in order to avoid a miscarriage of justice. See United States v. Grene, 455 F.2d 376, 378 (5th Cir.), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972); United States v. Hall, 440 F.2d 1277, 1278 (5th Cir. 1971); United States v. Hunter, 417 F.2d 296, 297 (5th Cir. 1969); Potter v. United States, 304 F.2d 664, 666 (8th Cir. 1962). 1 Appellant is free to use other procedural devices to attack his conviction, though we intimate no conclusions regarding the merits of his claim. The judgment of the district court is

AFFIRMED.

1

. Cf. United States v. Resnick, 483 F.2d 354, 358 (5th Cir.) cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973) (question raising for first time on appeal the possibility of unconstitutional sentence was required to be passed on first by trial court pursuant to Rule 35).

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550 F.2d 1013, 1977 U.S. App. LEXIS 13836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kenneth-malcolm-riffe-ca5-1977.

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