United States v. Alvin Schlesinger

ORDER

The opinion October 21, 1994, is amended to reflect the following changes:

The panel as constituted in the above case has voted unanimously to deny the petition for rehearing and to reject the suggestion for a rehearing en bane.

The full court has been advised of the suggestion for en banc hearing and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R.App.P. 35.

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.

OPINION

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…