U.S. v. Osipenkof

Full title: UNITED STATES of America, Plaintiff-Appellee, v. James Ree OSIPENKOF…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 15, 1989

895 F.2d 1418 (9th Cir. 1989)

Opinion

895 F.2d 1418 (9th Cir. 1989) UNITED STATES of America, Plaintiff-Appellee, v. James Ree OSIPENKOF, Defendant-Appellant. No. 87-1162. United States Court of Appeals, Ninth Circuit December 15, 1989

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Decided Feb. 13, 1990.

D.Ariz.

DISMISSED.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding.

Before CYNTHIA HOLCOMB HALL, BRUNETTI and NOONAN, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3.

James Ree Osipenkof appeals the district court's denial of his "Motion and Application for Order Amending Pre-Sentence Investigation Report." We dismiss the appeal.

On July 22, 1985, Osipenkof was sentenced, following his guilty plea, for a 1984 bank robbery. On December 22, 1986, Osipenkof filed his Motion and Application for Order Amending Pre-Sentence Investigation Report (Motion) charging that alleged errors in the presentence report were causing the "United States Parole Commission [to use] erroneous information ... to ascertain the actual amount of time [he] will remain incarcerated." Osipenkof now contends this Motion should be construed as a motion pursuant to 28 U.S.C. § 2255.

A section 2255 motion must allege that the sentence was imposed "in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack...." Osipenkof does not allege that the imposed sentence was unlawful. Rather he complains of the actions of the Parole Board, arguing it relied upon inaccurate information when making its parole decisions.

Osipenkof's claims would also fail if the motion were deemed a Rule 35 motion. A Rule 35 motion must be filed within 120 days after the imposition of the sentence. The 120-day time limit is jurisdictional. United States v. Minor, 846 F.2d 1184, 1189 (9th Cir.1988). Osipenkof filed this motion one year and five months after his sentence was imposed.

The appeal is DISMISSED for lack of federal jurisdiction.