923 F. 2d 864 - United States v. Pritz
923 F2d 864 United States v. Pritz
923 F.2d 864
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee
v.
Larry Jay PRITZ, Defendant-Appellant.
No. 90-30219.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 23, 1991.*
Filed Jan. 25, 1991.
Before ALARCON, CYNTHIA HOLCOMB HALL AND RYMER, Circuit Judges.
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MEMORANDUM**
Larry Jay Pritz appeals the district court's denial of his motion to reduce his sentence pursuant to Fed.R.Crim.P. 35(b) following his conviction on the charges of manufacturing and possession of methamphetamine both in violation of 21 U.S.C. Sec. 841(a)(1).1 Pritz contends that the district court's denial of his Rule 35(b) motion was an abuse of discretion in light of several allegedly mitigating factors presented to the court including and his model behavior while incarcerated. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.
This court reviews the denial of a Rule 35(b) motion for abuse of discretion. United States v. Thayer, 857 F.2d 1358, 1359 (9th Cir.1988). On review we must determine whether the denial of the motion was "based on a consideration of the relevant factors and whether there has been a clear error of judgement." United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 479 U.S. 963 (1986). "The function of Rule 35(b) is 'simply to allow the district court to decide if, on further reflection, the original sentence now seems unduly harsh.' " United States v. Smith, 650 F.2d 206, 208 (9th Cir.1981) (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir.1973)). Thus, a motion to reduce sentence under Rule 35(b) is essentially a plea for leniency. Thayer, 857 F.2d at 1360.
Although Pritz attacks his conviction by asserting that he was at the wrong place at the wrong time and that he is innocent of the charges for which he was convicted, his conviction has been upheld on direct appeal. Furthermore, the district court did not abuse its discretion by refusing to reduce Pritz' sentence in light of Pritz' assertions that he had permission to be on the property where he was arrested, that his arrest was unconstitutional because he was "hog-tied", and that he is a model prisoner. Finally, Pritz' contention that the jury verdict was inconsistent is without merit. The district court did not abuse its discretion by refusing to reduce Pritz' sentence on that basis.
Thus, the district court did not abuse its discretion by denying Pritz' Rule 35(b) motion to reduce his sentence. See Thayer, 857 F.2d at 1359-60.
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Because Pritz committed his crimes before November 1, 1987, the effective date of the Sentencing Guidelines, he properly made his motion under the old Rule 35(b)