United States v. Alvin Schlesinger

This appeal requires us to consider whether a sentence may be challenged on a petition pursuant to 28 U.S.C. § 2255 despite the fact that the challenge could have been made on direct appeal but was not.

Background

Petitioner Alvin Schlesinger was indicted on one count of distributing approximately one kilogram of cocaine, in violation of 21 U.S.C. § 841 (a)(1). On December 7, 1990, Schlesinger pleaded guilty pursuant to a plea agreement. He was sentenced on April 3, 1991 to 70 months imprisonment and five years supervised release. Schlesinger did not appeal his conviction or sentence, nor did he file a Fed.R.Crim.P. 35 motion to correct or reduce his sentence.

On December 7, 1993, Schlesinger filed a petition for resentencing pursuant to 28 U.S.C. § 2255 in the District of Hawaii. The petition alleged that the district court failed to resolve factual disputes at sentencing as required by Fed.R.Crim.P. 32(e)(3)(D). The petition was denied on March 4, 1994 on the ground that the sentencing court had, in fact, complied with Rule 32(c)(3)(D). Schlesinger now appeals that denial.

Discussion

The government argues that allegations of such sentencing errors, when not directly…