United States v. Paul Roberson

This appeal requires us to decide whether a defendant may properly appeal an alleged violation of Fed.R.Crim.P. 32 (factual inaccuracy in a presentence investigation report) after the limitations period for appeal has run by raising the claim in a timely filed Fed.R.Crim.P. 35 motion (correction of illegal sentence). We hold that, while ordinarily a Rule 32 matter cannot be subsumed in a Rule 35 motion, the unique circumstances presented here persuade us that the Rule 32 contention is inextricably intertwined with the illegality alleged under Rule 35 and is thus within our purview. Concluding that the matter is properly before us, we will affirm.

Jurisdiction was proper in the trial court based on alleged violations of 18 U.S.C. § 1341 and motions pursuant to Fed.R. Crim.P. 32(c)(3)(D) and 35. Jurisdiction on appeal is proper based on 28 U.S.C. § 1291 . Appeal was timely filed under Fed.R. App.P. 4(b).

I.

The appellant Paul Roberson was charged with violations of 18 U.S.C. § 1341 (Mail Fraud). Various trial dates were set with the final date set for May 9, 1988. During April of 1988, after conferring with newly appointed counsel and reviewing discovery provided by the…