Stockard v. United States

802 F.2d 460 (1986) | Cited 0 times | Sixth Circuit | August 14, 1986

BEFORE: KEITH and NELSON, Circuit Judges; and CONTIE, Senior Circuit Judge


This case has been referred to a panel of the Court pursuant to rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this action under 28 U.S.C. § 2255, petitioner is challenging the constitutionality of 1982 drug-related criminal convictions. The district court modified the sentence of incarceration and denied any further relief. Petitioner has appealed. On appeal the parties have briefed the issues, petitioner proceeding without benefit of counsel.

Upon consideration, we agree that the district court correctly disposed of this action. Petitioner claims that a plea agreement was broken by the sentencing court's noncompliance with Rule 11, Federal Rules of Criminal Procedure, and by the prosecution's conduct at petitioner's sentencing hearing. The district court, in response to this petition, modified the original sentence to reflect the fact that the special parole term imposed for the violation of 21 U.S.C. § 841(d) was improper. Having taken this action, the court then found this Rule 11 claim foreclosed by the holding of United States v. Timmreck, 441 U.S. 780 (1979). Upon review of the record, we concur. Timmreck is squarely applicable to preserve the otherwise valid guilty plea and subsequent conviction in light of the technical Rule 11 violation. Any prejudice resulting from this defect has been cured by the sentence modification.

We likewise find petitioner's second contention meritless. His claim is that the prosecution breached its promise to take no position on petitioner's sentence. He states this occurred when the prosecution advised the court of the applicability of special parole terms to petitioner's case. it is clear that a "no position" promise is not broken when the prosecution fulfills its duty as a court official in advising the court of supposedly correct, relevant legal and factual matters affecting sentencing. See, e.g., United States v. Baylin, 696 F.2d 1030, 1045 (3rd Cir. 1982); United States v. Block, 660 F.2d 1086 (5th Cir. 1981), cert. denied, 456 U.S. 907 (1982). We affirm.

It appearing therefore that the question on which the cause depends is so unsubstantial as not to need further argument, Rule 9(d)(3), Rules of the Sixth Circuit,

It is ORDERED that the final order of the district court be and it is hereby affirmed.

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