United States v. Ronnie Wayne Neill

887 F.2d 1082, 1989 U.S. App. LEXIS 14438, 1989 WL 117892

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 26, 1989
• Docket: 89-7564
• Status: Unpublished

Opinion

887 F.2d 1082
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ronnie Wayne NEILL, Defendant-Appellant.

No. 89-7564.

United States Court of Appeals, Fourth Circuit.

Submitted: Aug. 24, 1989.
Decided: Sept. 26, 1989.

Ronnie Wayne Neill, appellant pro se.

Robert Holt Edmunds, Jr. (Office of the United States Attorney), for appellee.

Before PHILLIPS, SPROUSE and WILKINS, Circuit Judges.

PER CURIAM:

Ronnie Wayne Neill appeals from the denial of his motion for correction or clarification of sentence. He alleges that in sentencing him the district court failed to make findings as to contested matters in the presentence report as required by Fed.R.Crim.P. 32(c)(3)(d). We affirm.

Neill's motion is best treated as a motion to correct a sentence imposed in an illegal manner. Fed.R.Crim.P. 35(a). As such, it is untimely because it was filed more than 120 days after his conviction was affirmed on appeal.

The motion could also be considered as one brought under 28 U.S.C. Sec. 2255. See United States v. Santora, 711 F.2d 41 (5th Cir.1983). However, by failing to seek review of his Rule 32 claim on appeal, Neill has waived it, and may not pursue relief on this issue under Sec. 2255. United States v. Emanuel, 869 F.2d 795 (4th Cir.1989). In addition, review of the record shows compliance with the rule. The sentencing court indicated how it would treat the contested matters in sentencing and also appended a form to the presentence report which listed each objection made by Neill and the district court's statement that none of the controverted matters had been considered in sentencing. See United States v. Hill, 766 F.2d 856, 858 (4th Cir.), cert. denied, 474 U.S. 923 (1985).

Accordingly, we affirm the order of the district court. We grant Neill's motion to enlarge the record and dispense with oral argument because the dispositive issues have recently been decided authoritatively.

AFFIRMED.