889 F. 2d 1088 - United States v. Betts

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and RICHARD F. SUHRHEINRICH, District 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 unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Defendant was found guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. The conviction was affirmed in United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir.1988). Defendant thereafter filed a motion for sentence reduction under Rule 35(b), Rules of Criminal Procedure (as applicable to offenses committed prior to November 1, 1987). The district court denied the motion and defendant appealed. The parties have briefed the issues, defendant proceeding in his own behalf.

The district court properly denied the motion. Defendant's motion is an attack on the plea agreement and underlying conviction. Rule 35(b) does not provide a vehicle by which a defendant may attack his conviction or any proceedings prior to the imposition of sentence. United States v. Willis, 804 F.2d 961, 964 (6th Cir.1986). Defendant may raise these issues in a collateral proceeding under 28 U.S.C. Sec. 2255. We, of course, offer no opinion of the likelihood of success of any subsequent proceedings.

Accordingly, the district court judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.