United States v. Franklin Leon Bryan , 995 F.2d 1068 ( 1993 )

995 F.2d 1068

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 92-6664.

United States Court of Appeals, Sixth Circuit.

June 11, 1993.

1

Before: RYAN, Circuit Judge; KRUPANSKY, Senior Circuit Judge, and JOINER, Senior District Judge.*

ORDER

2

Defendant appeals a district court order denying his request for reduction of sentence, construed as a motion filed under Fed.R.Crim.P. 35. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

On February 9, 1989, Franklin Leon Bryan pleaded guilty to bank robbery and armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). He was sentenced to serve 262 months imprisonment. His request that the sentence be served concurrently with a state sentence (which he is presently serving) was denied. Bryan did not appeal the conviction or sentence.

4

On November 20, 1991, Bryan filed a motion to vacate sentence under 28 U.S.C. § 2255 on grounds that his plea was involuntary, that he received ineffective assistance of counsel, and that he was entitled to a downward departure based on his age and mental illness. The motion was denied. The district court's order was affirmed on appeal. Bryan v. United States, No. 92-5098 (6th Cir. May 19, 1992) (unpublished).

5

On November 5, 1992, in a letter to the U.S. attorney, Bryan asserted that he was now 66 years old, that he will not begin to serve the 242 month federal sentence until 1995 at the earliest, and that if the district court were aware of these facts at sentencing, it would have imposed a lesser term of imprisonment. The letter was forwarded to the district court. The district court construed the letter as a motion for reduction or modification of sentence. Bryan's request for relief was denied.

6

Upon review, we conclude that the motion was properly denied. The district court was not authorized to reduce or modify Bryan's sentence in the absence of a motion by the government or a determination by the court of appeals that the sentence was illegal, unreasonable or the result of an incorrect application of the sentencing guidelines. See Fed.R.Crim.P. 35. None of these circumstances is present here.

7

Accordingly, the district court's order is hereby affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation