United States v. Donald Irving Hasbrouck

449 F.2d 1303

UNITED STATES of America
v.
Donald Irving HASBROUCK, Appellant.

No. 18501.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit Rule 12(6) September 20, 1971.

Decided October 6, 1971.

Robert J. Sarno, Furst, McCormick, Lynn, Reeder & Nichols, Williamsport, Pa., for appellant.

Harry A. Nagle, Asst. U. S. Atty., S. John Cottone, U. S. Atty., Lewisburg, Pa., for appellee.

Before VAN DUSEN, ALDISERT and GIBBONS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

1

On October 23, 1969, appellant pleaded guilty to an indictment charging a violation of 18 U.S.C. § 2312 (1970). On December 15, 1969 he was sentenced by the district court to the custody of the Attorney General for a period of five (5) years under the provisions of 18 U.S.C. § 4208(a) (2) (1970). On December 30, 1969 appellant filed a notice of appeal in the district court. This notice of appeal was untimely. The time within which the notice could be filed expired on December 26, 1969. Fed.R. App.P. 4(b), 26(a). No application was made to the district court pursuant to Rule 4(a) for an extension of the time for filing a notice of appeal. We must, therefore, dismiss the appeal. United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 4 L. Ed. 2d 259 (1960); Fitzsimmons v. Yeager, 391 F.2d 849 (3 Cir. 1968) cert. denied, 393 U.S. 868, 89 S. Ct. 154, 21 L. Ed. 2d 137 (1968).

2

The dismissal does not prejudice the appellant, since his only contention on appeal is that the sentence, following a guilty plea, though within the statutory limits, differed from sentences imposed on other defendants for the same offense. A discretionary sentence within the statutory limits will not, without more, be reviewed on appeal. Government of the Virgin Islands v. Venzen, 424 F.2d 521 (3 Cir. 1970); Government of the Virgin Islands v. Turner, 409 F.2d 102 (3 Cir. 1968); United States v. Anderson, 409 F.2d 836 (3 Cir. 1969).

3

The appeal will be dismissed. This dismissal is without prejudice to any attack which appellant may have made on his sentence pursuant to Fed.R.Crim.P. 35 or 28 U.S.C. § 2255 (1970).