Appendix — Deneen v. United States

la

Excerpt from Guilty Plea Transcript of September 25, 1981

(7)

THE COURT: May it be said that your express desire

to plead guilty to each of the three charges that you have

responded to here is a voluntary plea?

DEFENDANT DENEEN: Yes, your Honor,

THE COURT; Is it of your own free will act?

DEFENDANT DENEEN: Yes, your Honor.

THE COURT: What understandings are there here, Mr.

Palus, in this case?

MR. PALUS: It’s our understanding that the Defendant

will plead in Case Number G81-33 to Counts 3 and 11, and

in Case Number G81-97, to Count 1. In exchange for that,

after he is sentenced on his plea-based conviction the Gov-

ernment in G81-33 will m. ve to dismiss the other 15 counts,

and in G81-97, will move to dismiss Count 2 through 4,

THE COURT: Is that correct, Mr. Kalliel?

MR. KALLIEL: Those counts are to be dismissed as a

part of the plea bargain.

MR. PALUS: It's also a part of the plea agreement as

we understand it, your Honor, that the Government has

agreed that it will take no position regarding the sentence to

be imposed by the Court upon Mr, Deneen.

THE COURT; Is that correct, Mr. Kalliel?

MR. KALLIEL: That's correct.

2a

Excerpt from Sentencing Transcript of November 9, 1981

(6)

** * presentence, to give you my views about Mr. De-

neen, to deal with the aspects of publicity he’s received,

letters that the Court referred to, his plan of rehabilitation,

to go over his history, the histories of his family, from

childhood until the present time, to also give you the

reasons why Mr. Deneen became involved in this situation,

and to express to you his feeling and gratitude in a way,

that it’s all over, that he does not have to anymore play this

role that he found himself involved in, and got himself

involved in. We went over all those things, and I, on behalf

of Mr, Deneen, and I have told him that we have done this,

express our gratitude to the Court for having had that kind

of an informal, if you will, official discussion, so at least we

feel that we have told you everything we can to help Mr.

Deneen, carry out our duties as attorneys in this communi-

ty.

THE COURT: I believe at the discussion this morning

in chambers, that Mr. Palus was not heard, is that correct,

Mr. Palus?

MR. PALUS: That's right, your Honor.

THE COURT: And is that part and parcel of some

understanding or arrangement that you have had?

MR. PALUS: Yes, your Honor. It was part of the plea

agreement that the Government would make no comment or

recommendation regarding sentence.

3a

Memorandum in Opposition

UNITED STATES OF AMERICA

IN THE UNITED STATES

DISTRICT COURT FOR THE

WESTERN DISTRICT OF MICHIGAN,

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

-VS- Case No. G 81-33 Cr.

GARY WAYNE DENEEN,

Defendant.

MEMORANDUM IN OPPOSITION TO

MOTION FOR SENTENCE REDUCTION

On or about November 19, 1981, Defendant filed a

Motion for Sentence Reduction. Defendant has filed af-

fidavits which suggest his sentence should be reduced be-

cause his family will suffer hardships, his business enter-

prises will be affected, and legal suits require his presence.

The government submits such reasons are not sufficient to

require the relief requested.

A Fed. R. Crim. P. 35 Motion is addressed to the sound

discretion of the trial judge. The only limitations on that

discretion are that the sentence not be illegal and the denial

not be a gross abuse of discretion. United States v. Nerren,

613 F.2d 572, 573 (Sth Cir. 1980); United States v. Muniz,

571 F.2d 1344, 1345 (Sth Cir. 1978),

A sentence which is within the statutory limits is neither

illegal nor an abuse of discretion. United States v. Combie,

569, F.2d 273, 274-275 (Sth Cir. 1978); United States v.

Donner, 528 F.2d 276, 278-280 (7th Cir. 1976).

It is unfortunate that Defendant's business will be af-

fected. Is is sad that his family will be disrupted. These

4a

Memorandum in Opposition

matters do not, however, remove the fact of what defendant

has done.

In Donner, supra, the named defendant had broken into

a Selective Service office and destroyed records. By the

time of sentencing he had become rehabilitated and was

working for the Divine Light Mission. 528 F.2d 280. The

Appellate Court while upholding a denial of probation

stated, at 528 F.2d 230:

Carlyle tells us that of all acts of man, repentance of

one’s past deeds and the shaping of future efforts to

offset evil by positive good is most divine. But even the

truest repentance and most positive efforts to offset

prior evil do not carry forgiveness of punishment. Its

want emboldens lawlessness and entices others to join

in lawbreaking. Crime must have its punishment lest it

encourage licentiousness.

Similarly in this case, business and family problems do

not offset prior evil, they do not carry forgiveness of

punishment. Especially, in a case such as this, to relieve

the defendant of his punishment might embolden others

similarly situate to continue and begin criminal activity

without fear of punishment.

Just as in Donner, supra:

...the offense here is an insolent challenge to the

integrity of the processes of our government itself—the

warp and woof of any free society. To let such an

offense go unpunished would be a direct affront to the

governmental system. We cannot say in the light of

these circumstances that the refusal to grant probation

was an abuse of discretion. 528 F.2d 280.

This Honorable Court has already seen fit to show

mercy by its sentence. Defendant is not entitled to more.

Sa

Memorandum in Opposition

For all these reasons, the relief requested by defendant

should be denied.

Respectfully submitted,

JOHN A, SMIETANKA

United States Attorney

By Martin F. Palus

Assistant United States Attorney

544 Federal Building

Grand Rapids, MI 49503

(616) 456-2404

Dated: November 27, 1981

6a

Excerpt from Prosecutor's Comments

Hearing of November 27, 1981

EXCERPT FROM PROSECUTOR’S COMMENTS AT

SENTENCE REDUCTION HEARING OF

NOVEMBER 27, 1981

(74)

* * *

MR. PALUS: I just have some brief comments to make,

your Honor. As the Court knows, we did not make any

recommendation or any arguments concerning the sentence

when it was imposed as part of our agreement for the plea.

However, this Court received the presentence report, and

the input of the defense in that presentence report prior to

imposing the sentence which has been imposed, which as

the Court knows is quite a bit less than the maximum that

could have been imposed on Mr. Deneen. Your Honor, |

don’t think that by having this hearing, by submitting the

affidavits, Defendant has added anything to the concerns

and ideas and rationales that were presented to the Court at

the time of the sentencing. It is true that his family will be

disrupted if he goes to prison. It happens to anyone who

has a family that gets sentenced to prison. It is true his

business would be affected if (75) he goes to prison. That is

true of anybody who commits a crime and is sentenced to

prison who has a business, and it seems, your Honor, that

in all of this presentation by the Defendant, it’s always

somebody else’s fault. It's always the Mikes’ who got him

into this. It’s always the finance companies that make it so

easy, and now if he goes to prison because of what he has

done, it’s the Court's fault for not putting him on probation

as he would like to be.

But, it is in fact no one’s fault but Mr. Deneen’s. Mr.

Deneen freely lied, cheated and stole, and he’s sorry for

that now, and as we point out in our brief in the Donner

case, your Honor, as the Court knows Mr. Donner had

done a complete turn around in his life. He went from a

anti-social revolutionary to sacrificing his life for his fellow

man at the Divine Mission. In that case, the trial court saw

Ta

Excerpt from Prosecutor's Comments

Hearing of November 27, 1981

fit to sentence him to three years imprisonment for what he

had done. He appealed saying he should have had proba-

tion, and the appellate court pointed out that it is indeed

almost divine to feel repentance and to try to undo the evil

you had done, and then pointed out, **But even if the truest

repentance and most positive efforts to offset prior evil do

not carry forgiveness of punishment. Its want emboldens

lawlessness and entices others to join in lawbreaking. Crime

must (76) have its punishment lest it encourage licentious-

ness."’ In this case, I think this Court considered all the

requests and concerns of the defense, and also considered

the Donner cloak when it sentenced Mr. Deneen, and we

would suggest to the Court that defense has not presented

anything to the Court to change that, or it has already

shown to Mr. Deneen mercy when it originally imposed the

sentence, and we suggest to the Court that it is a legal

sentence, and that it should remain.

Excerpt from Findings and Decision

Hearing of November 27, 1981

EXCERPT FROM DISTRICT COURT JUDGE’S

FINDINGS AND DECISION AT SENTENCE REDUCTION

HEARING OF NOVEMBER 27, 1981

(85)

*** but I don’t give it a lot of points either.

There is really no way that Gary Deneen can ever pay

back what has happened. The United States Attorney has

put his finger on it, for what he has done to his family, and

when we get to a place in life where we command the

respect of many other people, there is an added obligation

on us, or when we deal in hundreds of thousands of dollars,

and when we have employees, we stop and think before we

take action. This is expected of us. What has been done can

never be paid back. The cost to the Government and the

federal bankruptcy judge and the Court, the officials, the 23

Grand Jurors who met in this case, gave up a portion of

their lives and their money and their days on the job, and

otherwise to come and hear this matter; FBI agents who

were employed over many, many days in its investigation;

probation officers who were kept busy in this Court; the

United States Attorneys who are involved in this. This

Court has spent a considerable, I should not say an inordi-

nate amount of time, because there is no case in which—

criminal case that I would call an inordinate amount of

time, but if we were to have to calculate the cost that have

already gone to the United States Government in this case,

would be in excess of $25,000, and that will not be paid

back, that will be paid by and is paid by the taxpayers of

this country. Those are but a * * *

9a

Order Denying Reduction of Sentence

Filed December 7, 1981

DISTRICT COURT ORDER

DENYING REDUCTION OF SENTENCE

DATED DECEMBER 7, 1981

On November 9, 1981, following a plea of guilty in Case

No. G81-33 CR to charges of mail fraud in violation of 18

U.S.C. § 1341 (Count 3) and interstate transportation of

stolen property in violation of 18 U.S.C. §§ 2314 and 2

(Count 11), defendant was sentenced to a term of five years

on Count 3 and nine years on Count 11.

On the same day, following a plea of guilty in Case No.

G81-97 CR to a charge of interstate transportation of stolen

property (Count 1) in violation of 18 U.S.C. § 2314, defen-

dant was sentenced to a term of nine years.

All sentences were adjudged to run concurrently. The

judgments further provided that defendant was to report to

the designated institution for commencement of his sen-

tences on November 30, 1981.

Defendant has now moved for a reduction of sentence in

each of these cases under the provisions of Rule 35 of the

Federal Rules of Criminal Procedure. The court has duly

considered the motions, the memoranda, and the affidavits

filed in support thereof. The court concluss that a reduc-

tion of sentences previously imposed is not warranted. The

motions to reduce the sentences are therefore denied.

IT IS SO ORDERED.

Dated: November 27, 1981

(s) Wendell A. Miles

Judge, United States District Court

10a

Order Filed September 17, 1982

ORDER OF THE SIXTH CIRCUIT COURT OF APPEALS

DATED SEPTEMBER 17, 1982

(Filed: September 17, 1982)

Before: EDWARDS, Chief Judge; ENGEL, Circuit Judge;

and HOFFMAN, Senior District Judge*

Appellant Gary Wayne Deneen appeals from a decision

of the district court denying his motion made under Rule 35

of the Federal Rules of Criminal Procedure. Deneen had

been the subject of a 17-count indictment by a grand jury

from the Western District of Michigan and a 4-count in-

dictment entered by a grand jury for the Eastern District of

Wisconsin. Following transfer of the Wisconsin case to the

Western District of Michigan pursuant to Federal Rule of

Criminal Procedure 20, Deneen pled guilty to one count

each of mail fraud, interstate transportation of stolen money

and securities, and interstate transportation of falsely made,

forged, altered or counterfeit securities. In exchange for the

guilty pleas, the government agreed to dismiss the remain-

ing counts and to take no position regarding the sentence to

be imposed. The district court sentenced Deneen to concur-

rent terms on the three counts of five years, nine years, and

nine years, respectively. Deneen then moved for a Rule 35

hearing to reduce sentence. At the Rule 35 hearing, the

government suggested that Dencen’s sentence remain the

same and commented on his character and prior acts.

Following denial of his motion to reduce sentence, Deneen

_ filed a notice of appeal.

Deneen relies upon the unpublished decision of this

court in Angus v. United States, No. 80-5005 (6th Cir.

February 17, 1981), as authority that the government's

comments at the Rule 35 hearing amounted to a violation of

its plea bargain and required a vacation of the judgment of

the district court and a remand for resubmission of his Rule

35 motion before a district judge. Angus, in turn, relied

upon certain language employed in United States v. Ewing,

480 F.2d 1141 (Sth Cir. 1973).

Ila

Order Filed September 17, 1982

Upon consideration the court finds Angus v. United

States, supra, inapposite. In Angus, it was apparent that

the government's plea bargain included an agreement not to

oppose Angus’ request for probation, a bargain it failed to

keep when it, in fact, opposed Angus’ request for probation

at the Rule 35 hearing. Here, the sole promise of the

government respecting the sentence was that it would ‘‘take

no position regarding the sentence to be imposed.’’ The

court considers that the government kept its bargain, and

while perhaps it could have agreed not to comment at any

post-sentence proceedings, there was no evidence that it did

in fact do so. In the absence of such a specific agreement,

the government retained the freedom to comment as it did.

Accordingly,

IT IS ORDERED that the judgment of the district court

is AFFIRMED.

ENTERED BY ORDER OF THE COURT

(s) John P. Hehman

Clerk

12a

Order Filed September 17, 1982

Re: Nos. 81-1763/1764

United States of America v. Gary Wayne Deneen

HOFFMAN, Senior District Judge, concurring specially.

While I concur in the order in the above cases, I write

separately to express my views because of the interaction

of Rule 35 with Rule 11, and my concern as to the unpub-

lished opinion of this court in Angus v. United States, No.

80-5005, decided February 17, 1981.

A review of the briefs in Angus will demonstrate why

the court decided to rely upon United States v. Ewing, 480

F.2d 1141 (Sth Cir. 1973). Angus involved a plea agreement

wherein Angus agreed to plead guilty to conspiracy to

possess with intent to distribute heroin in violation of 21

U.S.C. § 846. The Government, on its part, agreed to move

to dismiss the remaining ten counts, that it would not

oppose a probationary sentence, and would also agree that

Angus receive no more than six years incarceration under

18 U.S.C. § 4205(b)(2). On November 11, 1977, Angus was

sentenced to a term of six years under § 4205(b)(2), with a

special parole term of three years.' At the sentencing hear-

ing, the Government fully complied with its agreement.

Angus thereafter appealed with this court affirming the

conviction and certiorari being denied.

Approximately twenty months after sentence was im-

posed, Angus filed his first Rule 35 motion to reduce his

sentence, said motion being timely filed within 120 days

from the denial of the petition for a writ of ceritorari. The

Government responded. opposing any reduction of sentence

and any stay of execution because “‘‘it is highly unlikely that

the balance of the present motion will result in a probatio-

nary sentence for the defendant.’’ Thereafter, the district

* judge reduced the sentence to four years under 18 U.S.C. §

4205(b)(2).

' The special parole term was rendered nugatory under Bifulco v.

United States, 447 U.S. 381 (1980), although the Angus unpublished

opinion fails to mention Bifulco.

13a

Order Filed September 17, 1982

Angus then filed a further motion to reduce the sentence

and contended that the Government violated the plea ag-

reement by opposing the initial Rule 35 motion, relying

entirely upon Santobello v. New York, 404 U.S. 257 (1971)

(where the violation occurred at the sentencing hearing

following the prosecutor's agreement to make no recom-

mendation as to sentence but, at the sentencing hearing, the

prosecutor recommended that the maximum sentence be

imposed), and United States v. Ewing, 480 F.2d 1141 (Sth

Cir, 1973) (where the alleged violation occurred at a Rule 35

hearing) with the latter court stating:

The fact that the prosecution fulfilled its commitment at

the initial sentencing only to breach it at the subsequent

hearing on [a] motion for reduction of sentence. . . [is

a] distinction of little import because both of these

proceedings were integral parts of the sentencing pro-

cess in this case. Surely when [he] obtained the Gov-

ernment’s promise not to oppose probation in exchange

for his plea of guilty, he did so in the expectation that

the benefits of that promise would be available through-

out the proceedings relevant to the determination of his

sentence. (Emphasis sur plied).

Ewing cites no authority for the proposition that a Rule

35 hearing is an integral part of the sentencing process,

Indeed, it is not an integral part of the sentencing process,

but /y an integral part of the post-sentencing remedies made

available under Rule 35(b), One need only consider the fact

that, under a Rule 35(b) motion for reduction of sentence,

there is no absolute right to a hearing as the motion is

frequently considered by the judge informally and in cham-

bers; a defendant has no constitutional right to be person-

ally present or to be represented by counsel at any consid-

eration of the motion. United States v Donohoe, 458 F.2d

237 (10th Cir, 1972), Assuredly, the 120-day time limitation

for filing a motion under Rule 35(b) does not run anew from

any reduction of the sentence; it still commences at the

i ee el

l4a

Order Filed September 17, 1982

time the sentence was imposed in the first instance, And, of

course, an appeal may be immediately noted after sentence

is imposed.

In United States v. Behrens, 375 U.S, 162 (1963), the

Court discussed the relationship between Rule 35 and a

sentence imposed under 18 U.S.C, § 4208(b) [now 18

U.S.C. § 4205(c)]. In Behrens, the district court first im-

posed a maximum sentence of 20 years to ‘be subject to

modification in accordance with Title 18, U.S.C. §

4208(b).’’ After receipt of the report from the Director of

the Bureau of Prisons, the district court entered an order

providing ‘that the period of imprisonment heretofore im-

posed be reduced to Five (5) years’’, but neither the defen-

dant nor his counsel was present when the modification

order was entered, In considering the necessity of the

defendant and his counsel to be present in a Rule 35

proceeding, Justice Black, speaking for the Court, said:

It is true that the same rule [Rule 43] provides that a

defendant's presence is not required when his sentence

is reduced under Rule 35, But a reduction of sentence

under Rule 35 is quite different from the final determina-

tion under § 4208(b) of what a sentence is to be. Rule 35

refers to the power of a court to reduce a sentence

which has already become final in every respect.

Thus, the Behrens court held that a defendant must be

present at the time of final sentencing under § 4208(b), the

Court also pointing out that a defendant has the right to

speak in his own behalf under Rule 32(a) [now Rule

32(a)(1)] of the Federal Rules of Criminal Procedure, And in

the companion case, Corey v. United States, 375 U.S. 169

(1963), decided the same day as Behrens, the Court re-

versed the Circuit Court of Appeals for the First Circuit,

which had dismissed as untimely an appeal from the final

sentence pursuant to § 4208(b) by holding that a timely

notice of appeal could be filed, at the option of the defen-

ISa

Order Filed September 17, 1982

dant, after the initial sentence under § 4208(b), or after the

final sentence subsequent to the receipt of the report from

the Director of the Bureau of Prisons, While Corey did not

discuss Rule 35, it does state what is meant by a final

judgment where it says a ‘‘Final judgment in a criminal

case... means sentence, The sentence is the judgment’,

citing Berman vy. United States, 302 U.S, 211, 212 and

Korematsu vy. United States, 319 U.S, 432, 434,

Based upon these teachings, | respectfully disagree with

the Ewing case, as well as the unpublished opinion in

Angus which relies solely upon Ewing. However, in fairness

to the Angus panel it should be noted that the Government

conceded that it ‘did inadvertently oppose the Defendant's

initial motion to reduce [the] sentence to probation’’, thus

tacitly confessing error and without endeavoring to point out

any error in the Ewing ruling despite the fact that Ewing

had been criticized in the intervening period.

The Third Circuit, in United States v. Ligori, 658 F.2d

130 (1981) has expressly repudiated Ewing. The Seventh

Circuit, in United States v. Mooney, 654 F.2d 482 (1981),

has said; ‘In the absence of any indication that the parties

expected the Government not to oppose a Rule 35 motion,

we would hesitate to imply such a condition.’' United

States v. Arnett, 628 F.2d 1162 (9th Cir, 1979), holds to this

effect, although the case was remanded to the same trial

judge to determine the dispute, if any, as to the terms of the

plea agreement. The Second Circuit, in Bergman vy. Lef-

kowitz, 569 F.2d 705 (1977), rejected the defendant's argu-

ment that the prosecution violated the plea agreement to

recommend no additional sentence merely by opposing the

motion to reduce the sentence, Even the Fifth Circuit has

tempered its Ewing opinion in United States v. Johnson,

582 F.2d 335 (1978), by saying ‘United States v. Ewing,

supra, does not give the defendant the right to present an

unopposed Rule 35 motion. The government violates Ewing

l6a

Order Filed September 17, 1982

only when its opposition violates the essence of the plea

bargain.”’

While I agree that some prosecutor could conceivably

bargain not to oppose a Rule 35 motion, or a motion under

28 U.S.C. § 2255, and such an agreement could be upheld

under Santobello, it stretches my imagination to say that, in

a separate proceeding following final judgment from which

an appeal can be noted forthwith, there can be a ‘silence

forever’’ edict imposed upon the prosecution.

Rule 35 is now in the process of amendment by resolv-

ing a conflict in the circuits where the execution of the

sentence has been suspended, the defendant placed on

probation, and his probation is later revoked. The Second

Circuit in United States v. Kahane, 527 F.2d 491 (1975),

held that a Rule 35 motion filed after probation was revoked

was untimely. The Third Circuit disagreed in United States

v. Johnson, 634 F.2d 94 (1980), holding that the 120-day

time limitation runs from the date of revocation of proba-

tion. If the views of the Advisory Committee on Criminal

Rules are upheld, the amendment will agree with the Third

Circuit and will thus permit a Rule 35 motion to be filed

within 120 days from the date of revocation of probation.

The effect of sustaining the Ewing ruling in this situation is

significant. A prosecutor could agree not to make any

recommendation as to the sentence to be imposed and

adhere to that agreement at the time of sentencing. The

district judge imposes a sentence, but suspends the execu-

tion of that sentence and places the defendant on probation

for a given period of years not, of course, in excess of five.

Within the time period of the probation, the defendant

violates the terms of the probation and probation is re-

voked. He then, under the proposed amendment to Rule 35,

files a motion for reduction of sentence. According to

Ewing and Angus, the prosecutor is foreclosed from com-

menting as to whether the originally imposed sentence

should be reduced. I cannot subscribe to sealing the lips of

17a

Order Filed September 17, 1982

the prosecutor beyond the time that he committed himself

to remain silent, or otherwise not to oppose a request for

probation. A Rule 35(b) motion presupposes a valid sen-

tence which is complete and final in every respect. Vo. 8A,

Moore's Federal Practice, § 35.02[1].

The history of Rule 35 lends support to the conclusion

that it is not an integral part of the sentencing process, but

is indeed, a post-sentence remedy made available to a

defendant if exercised within a specified number of days.

To fix a definite time limitation which previously had fluc-

tuated by reason of terms of court fixed by local rules was

one of the primary reasons for what is now Rule 35. After

the expiration of the term of court, there was no power to

reduce a sentence prior to the passage of Rule 35. Once the

service of the sentence had actually commenced, the right

to modify the sentence no longer existed even during the

same term of court. United States v. Murray, 275 U.S. 347,

358 (1928). Some local rules carried provisions for extend-

ing the terms of court, and these extension orders were

frequently entered to permit judges to give further consider-

ation to reducing sentences already imposed. There were,

indeed, cogent reasons for adopting Rule 35 but, aside from

the foregoing, the basic reasoning is set forth in Moore's

Federal Practice, Vol. 8A, § 35.02[1], where it is said:

The psychological principle upon which the motion

seems to be premised is that passage of time may find

the sentencing judge in a more sympathetic or receptive

frame of mind. This principle is likely to operate diffe-

rently depending upon whether the sentence is imposed

upon a plea of guilty or after trial. In the latter case the

trial judge's reaction to defendant's alleged perjury on

the stand, or to the fact that he went to trial at all, may

moderate when the immediacy of the trial has faded.

Judges are human. On the day of sentencing he or she may

have been ill or irritated by circumstances unrelated to the

18a

Order Filed September 17, 1982

trial of a defendant. Rule 35(b) affords a judge an opportun-

ity to reconsider his prior action. It is a separate but

independent proceeding and any agreement by a prosecutor,

unless expressly stated otherwise, should be limited to the

original sentencing hearing.

In the case under consideration, the Rule 35 hearing was

conducted under circumstances which brought forth no ob-

jection as to any participation or statement by the Assistant

United States Attorney. No suggestion was made that the

matter should be considered by another judge until appel-

lant’s brief on appeal was filed. The hearing on the motion

reflected no possible bias or prejudice on the part of the

judge. These factors alone would be sufficient for me to

affirm the action of the trial court in denying the Rule 35

motion but, as convinced as I am that Ewing was impro-

perly decided, I advance my views as to the more important

question of whether Rule 35(b) is an integral part of the

sentencing process or, as I believe, whether it is merely an

integral part of the post-sentencing remedies available under

Rule 35(b).

19a

Order Denying Petition for Rehearing

ORDER DENYING PETITION FOR

REHEARING DATED NOVEMBER 18, 1982

(Filed: November 18, 1982)

Before: EDWARDS: Chief Judge; ENGEL, Circuit Judge;

and HOFFMAN, Senior District Judge*

No judge in regular active service of the court having

requested a vote on the suggestion for a rehearing en banc,

the petition for rehearing filed herein by the defendant-

appellant has been referred to the panel which heard the

original appeal. Upon consideration of said petition, the

court finding no issues presented which have not been

previously considered,

IT IS ORDERED that the petition for rehearing en banc

be and it is hereby denied.

ENTERED BY ORDER OF THE COURT

(s) John P. Hehman

Clerk

* Honorable Walter E. Hoffman, Senior Judge, U.S. District Court

for the Eastern District of Virginia, sitting by designation.