Opinion
No. 82-1462.
Submitted March 28, 1983.
Decided April 27, 1983.
James Kyle Gee, Henrikson Gee, Oakland, Cal., for defendant-appellant.
Joseph M. Burton, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before GOODWIN, KENNEDY and ALARCON, Circuit Judges.
The panel is unanimously of the opinion that oral argument is not required in this case. Fed. R.App.P. 34(a).
The appellant, David T. Holt, contends that the district court was required to hold a hearing on his Rule 35 motion for modification of sentence. Fed.R.Crim.P. 35. The district court's decision not to hold a hearing in a Rule 35 proceeding will be reversed only when the district court has abused its discretion, United States v. Krueger, 454 F.2d 1154 (9th Cir. 1972). Holt has demonstrated no such abuse. The motion and attached affidavits in this case made an ample record, and it does not appear from the appeal that any additional information would have been adduced at an oral hearing.
The case of United States v. Ginzburg, 398 F.2d 52 (3d Cir. 1969), is distinguishable, for there the applicable substantive law had changed after sentencing, and a hearing was deemed useful to present additional evidence that might have led to a modification of the sentence.
It may well have been that here, as in many other criminal proceedings, the sentencing phase of the case was the one of most importance to the defendant, and we would have been more comfortable with the matter had the hearing been held. Nevertheless, we cannot say that the trial court abused its discretion.
AFFIRMED.