United States v. Phillip M. Block

812 F.2d 1408, 1987 U.S. App. LEXIS 1457, 1987 WL 36632

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 28, 1987
• Docket: 86-5698
• Status: Unpublished

Opinion

812 F.2d 1408

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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.
Phillip M. BLOCK, Defendant-Appellant.

No. 86-5698.

United States Court of Appeals, Sixth Circuit.

Jan. 28, 1987.

Before ENGEL and BOGGS, Circuit Judges, and HILLMAN, District Judge.*

ORDER

This pro se federal prisoner moves the Court for the appointment of counsel in his appeal from a district court judgment denying his two motions to reduce his sentence filed under Rule 35(a) and (b), Federal Rules of Criminal Procedure. Upon review of the cause, we affirm the district court.

The defendant failed to raise any substantive argument in either one of his motions filed in the district court. For the first time, the defendant states on appeal that his presentence report contained serious factual inaccuracies. Although they were brought to the district court's attention at his sentencing hearing, the court failed to address the inaccuracies pursuant to Rule 32(c)(3)(D), Federal Rules of Criminal Procedure. Under this Rule, a sentencing court is required either to make written findings regarding each alleged inaccuracy in a presentence report or to determine that such findings are not necessary because it did not rely upon the disputed information at sentencing. One of these determinations must be attached to the presentence report. See Kramer v. United States, 798 F.2d 192 (7th Cir.1986); United States v. Petitto, 767 F.2d 607 (9th Cir.1985). Cf. United States v. Polselli, 747 F.2d 356 (6th Cir.1984).

Although the defendant raises a facially valid challenge to his sentence, the ultimate merits of which we do not address, it is clear that the district court properly denied the defendant's Rule 35 motions because none of these substantive allegations were asserted in the motions. This Court can not review the allegations in the first instance. See Ballard v. Tennessee Valley Authority, 768 F.2d 756, 765 (6th Cir.1985); United States v. Polselli, 747 F.2d at 357; Caldwell v. United States, 651 F.2d 429, 434 (6th Cir.1981). The defendant is advised that he may, nonetheless, still assert his claims in the district court in a motion to vacate his sentence pursuant to 28 U.S.C. Sec. 2255.

This panel unanimously agrees that oral argument is not necessary in this appeal, Rule 34(a), Federal Rules of Appellate Procedure. The district court's judgment is, accordingly, affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.

* The Honorable Douglas W. Hillman, Chief Judge, U.S. District Court for the Western District of Michigan, sitting by designation