UNITED STATES OF AMERICA
v.
DONALD IRVING HASBROUCK, APPELLANT
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The court held that an untimely filed notice of appeal must be dismissed, and a discretionary sentence within statutory limits is not reviewable.
Appellant pleaded guilty, was sentenced, and then filed an untimely notice of appeal. His sole contention on appeal was that his sentence differed fro…
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PER CURIAM:
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).
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) .
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).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- United States v. Robinson, 361 U.S. 220 (U.S. 1960)
- Fitzsimmons v. Yeager, 391 F.2d 849 (3d Cir. 1968)
- Glorioso v. Immigr. & Naturalization Serv., 393 U.S. 868 (U.S. 1968)
- Talbot v. Nelson, 393 U.S. 868 (U.S. 1968)
- Gov't of the Virgin Islands v. Turner, 409 F.2d 102 (3d Cir. 1968)
- Gov't of the Virgin Islands v. Elridge Venzen, 424 F.2d 521 (3d Cir. 1970)
- United States v. Anderson, 409 F.2d 836 (3d Cir. 1969)