United States v. Nelson Raymond Fernandez

Fernandez appeals from his resentencing to six months imprisonment for assault by striking, a violation of 18 U.S.C. § 113 (d). We affirm.

I

As a result of his involvement in a barroom fight on the Colorado Indian Reservation, appellant Fernandez — a tribal police officer — was indicted for assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113 (f), 1153. Pursuant to a plea bargain, he pleaded guilty to the lesser offense of assault by striking.

Because of perceived inaccuracies in the presentence report, counsel for appellant prepared a memorandum detailing these inaccuracies for the sentencing judge. Later, at the sentencing hearing, counsel reiterated these objections to the presentence report. At the conclusion of the hearing, appellant was sentenced to six months imprisonment.

After filing a timely notice of appeal, Fernandez sought release pending appeal and moved to correct sentence pursuant to Fed.R.Crim.P. 35. In this motion, appellant again argued that the presentence report was inaccurate and asserted for the first time that in his capacity as a tribal police officer he had once issued a speeding ticket to the probation officer who prepared the…