960 F. 2d 149 - Pastor v. United States

Before DAVID A. NELSON and RYAN, Circuit Judges, and FORESTER, District Judge.*

Jesus Pastor, a pro se federal prisoner, appeals the district court's order denying his motion to vacate, correct or set aside his sentence filed under 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

A jury convicted Pastor in 1987 of five counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The charged offenses occurred between August and September 1987, prior to the effective date of the Sentencing Reform Act of 1984. The district court sentenced Pastor to ten years imprisonment for count one, ten years for count two, twenty years for count three, twenty years for count four, and twenty years for count six. These sentences were to run consecutively, resulting in a total prison term of eighty years. Pastor was also sentenced to five three-year terms of supervised release. This court affirmed Pastor's conviction and sentence on appeal. See United States v. Pastor, No. 88-3498 (6th Cir. March 20, 1989) (per curiam). Pastor also filed a motion to reduce his sentence, which the district court denied in an order filed October 16, 1990.

In his present motion to vacate, Pastor raises two grounds for relief: (1) his indictment and sentence are multiplicitous and violate his Fifth Amendment protection against double jeopardy, and (2) his sentence is disproportionate and violates his Eighth Amendment protection against cruel and unusual punishment. The district court denied the motion in an opinion and order filed October 17, 1991. The district court found that Pastor's first issue was meritless because 21 U.S.C. § 841(a)(1) permits separate convictions and sentences for distinct acts of delivering a controlled substance, and that his second issue had been considered and rejected by this court on direct appeal.

On appeal, Pastor argues that his "continuing course of conduct" should carry only one punishment, and that his sentences should run concurrently, if at all. He requests the appointment of counsel in his appellate brief.

Upon review, we affirm the district court's order because Pastor has not established a complete miscarriage of justice or proceedings inconsistent with the rudimentary demands of fair procedure. See United States v. Timmreck, 441 U.S. 780, 784 (1979); Davis v. United States, 417 U.S. 333, 346 (1974).

Accordingly, the request for counsel is denied. The district court's order, entered October 17, 1991, is affirmed for the reasons stated therein. Rule 9(b)(3), Rules of the Sixth Circuit.