U.S. v. Rosch, 94-2888
| Decision Date | 20 November 1995 |
| Docket Number | No. 94-2888,94-2888 |
| Citation | 1995 WL 695973,70 F.3d 1275 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES of America, Plaintiff-Appellee, v. John F. ROSCH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before POSNER, Chief Judge, COFFEY, Circuit Judge, and WILLIAMS, Senior District Judge. *
Defendant John Rosch appeals the district court's denial of his motions to correct his sentence under Fed.R.Crim.P. 35(a), to reduce his sentence under Rule 35(b), for appointment of counsel during sentencing and for disqualification of the district court judge for bias or prejudice. For the reasons expressed below, we AFFIRM.
On September 20, 1990, Rosch was indicted on twenty-eight counts of criminal misconduct in connection with his activities as president and chief operating officer of Glen Ellyn Savings & Loan Association. Three days into his trial, Rosch pled guilty to one count of violating the Racketeer Influenced Corrupt Organization Act ("RICO") and to one count of embezzling $100,000 in bank funds. In exchange for Rosch's guilty plea, the government agreed to dismiss the remaining counts against him. Rosch was sentenced to nine years in prison and a $2 million fine on the RICO charge, and five years of probation, 500 hours of community service, and a $100,000 fine on the embezzlement charge.
Subsequently, Rosch filed a habeas corpus petition in the District of Wisconsin which was denied, and two direct appeals challenging his conviction and sentence. We consolidated the three actions on appeal and affirmed the district courts' decisions in all respects in United States v. Rosch, 92-2164, 92-2826, 92-3940, Unpub. Order (7th Cir. Dec. 21, 1993).
After the Supreme Court denied Rosch's petition for a writ of certiorari, he filed several more motions in district court attacking his sentence. The district court denied all of these motions, and Rosch now appeals to this Court again.
Rosch raises four issues in this appeal: (1) whether the district court improperly denied his motion to correct his sentence under Fed.R.Crim.P. 35(a); (2) whether the district court improperly denied his motion to reduce his sentence pursuant to Fed.R.Crim.P. 35(b); (3) whether the district court erred by denying his motion for appointed counsel during sentencing; and (4) whether the district court erred by denying his request for disqualification of Judge Nordberg for bias pursuant to 28 U.S.C. Sec. 144. We will address each issue in turn.
The pre-1991 version of Fed.R.Crim.P. 35(a), which applies to offenses committed before November 1, 1987, provides that the court may "correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence [120 days]." The purpose of this rule is not to reexamine errors occurring at trial or during other proceedings prior to the imposition of sentence. Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962). Rather, Rule 35(a) assumes a valid underlying conviction and provides a procedure to bring an illegal sentence into conformity with the law. Gilinsky v. United States, 335 F.2d 914, 916 (9th Cir.1964); United States v. Makres, 741 F.Supp. 727, 733 (N.D.Ill.1990), aff'd 937 F.2d 1282 (7th Cir.1991). In ruling on a Rule 35(a) motion, facts outside the sentencing record may not be considered; to do so would transform the motion into a collateral attack on the sentence that properly should be brought under 28 U.S.C. Sec. 2225. Makres, 741 F.Supp. at 733. Semet v. United States, 422 F.2d 1269, 1271 (10th Cir.1970); Johnson v. United States, 334 F.2d 880, 883 (6th Cir.1964), cert. denied, 380 U.S. 935 (1964).
In his motion to the district court, Rosch asserted numerous grounds for correcting his sentence pursuant to Rule 35(a). The district court denied the motion because it found that all of Rosch's grounds had been addressed and rejected by this Court in Rosch's direct appeal.
We do not find any error in the district court's decision. Although our previous opinion denying Rosch's direct appeal did not explicitly reject all of the arguments made in his Rule 35(a) motion, none of the remaining arguments demonstrate that Rosch's sentence was illegal or was imposed in an illegal manner. Those arguments include: (1) the district court's refusal to conduct a hearing on Rosch's Rule 35(a) motion; (2) ineffectiveness of Rosch's appeals counsel; (3) perjury by government witnesses during the sentencing hearing; (4) "complete failure of the fact-finding process at every stage of the correctional process"; (5) breach of the plea agreement by the government; (6) errors in the pre-sentence investigation report ("PSI"); and (7) denial of Rosch's opportunity to present evidence at his sentencing hearing. We will address each argument in turn.
As far as Argument One is concerned, due process does not automatically confer the right to a hearing on every motion submitted to the district court. Potter v. United States, 317 F.2d 661, 662 (8th Cir.1963). In fact, given that a Rule 35(a) motion is not a collateral attack on Rosch's conviction, "[s]uch motions ordinarily do not require the opportunity for an oral submission." United States v. Foss, 501 F.2d 522, 529 (1st Cir.1974). Here, the district court was well aware of Rosch's grounds for requesting correction of his sentence. Rosch's protestations during prior proceedings, as well his voluminous written submissions, amply informed the court of the basis for his objections. Therefore, the district court committed no error by refusing to hold an evidentiary hearing.
Arguments Two and Three are not legitimate because they concern matters that are entirely outside the sentencing record. Rosch's claim of ineffective assistance of counsel is based on wholly extraneous allegations that Rosch's counsel did not consult with his client enough and refused to make all the arguments Rosch suggested. This claim has nothing to do with the legality of Rosch's sentence as defined in Rule 35(a). Likewise, Rosch's allegations of perjury by a government witness at the sentencing hearing are based upon supposed newly discovered evidence, none of which was before the district court during sentencing. Both of these matters should properly be raised in a petition pursuant to 28 U.S.C. Sec. 2225, not in a Rule 35(a) motion. Makres, 741 F.Supp. at 733; See also, Page v. United States, 884 F.2d 300, 301-02 (7th Cir.1989) (). Rosch has such a petition currently pending before the district court.
Argument Four, involving alleged errors in the district court's factual findings, does not demonstrate that Rosch is suffering from an illegal sentence either. We have already determined in Rosch's direct appeal that the district court's findings during Rosch's sentencing hearing were "adequate and timely." Rosch, Unpub. Order at 23-24. Furthermore, any lack of specificity in the district court's factual findings resulted from Rosch's own abuse of his right to object. During the sentencing hearing, Rosch asserted his innocence, challenged the pre-sentence report in its entirety, and attempted to contradict testimony that had been given at trial. See Rosch, Unpub. Order at 6. In a situation such as this, Rosch constructively waived his right to specific findings of fact. See United States v. Aleman, 832 F.2d 142, 145 (11th Cir.1987) (); United States v. Hurtado, 846 F.2d 995, 995 (5th Cir.1988) (same), cert. denied, 488 U.S. 863 (1988).
Nor is Argument Five valid. Rosch alleges that the government breached its plea agreement when it filed a motion to preclude a hearing on Rosch's objections to the PSI. However, even if this did constitute a breach, Rosch suffered no resulting harm since the district court refused the government's request and held a five day hearing on Rosch's objections.
Argument Six, concerning purported errors in the PSI, is insufficient as well. We resolved this issue in our earlier unpublished order, stating that the district court made adequate findings of fact during the sentencing hearing and sentenced Rosch based on accurate evidence. Rosch, Unpub. Order at 23-24. The mere fact that our earlier opinion did not reject each of Rosch's multitude of challenges to the PSI by name does not mean that they were left unresolved.
Finally, Argument Seven, Rosch's assertion that he was denied the opportunity to present evidence at his sentencing hearing, is completely unsupported by the record. Rosch's sentencing hearing lasted six days, during which the judge granted him great latitude in presenting relevant evidence. His failure to introduce additional documentation or to call any witnesses other than himself was his own choice. See Rosch, Unpub. Order at 7.
In sum, none of Rosch's arguments raise any legitimate suggestion that he is suffering either from an illegal sentence or from a sentence that was imposed in an illegal manner. The district court was correct to deny Rosch's Rule 35(a) motion.
Rosch has also appealed the district court's denial of his motion to reduce his sentence pursuant to Fed.R.Crim.P. 35(b).
A Rule 35(b) motion for reduction of sentence is essentially a plea for...
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...820 F.2d 20, 24 (1st Cir.1987) (gross abuse of discretion standard). In an unpublished opinion, the court in United States v. Rosch, 70 F.3d 1275, 1995 WL 695973 (7th Cir.1995) held that: "The court has almost unlimited discretion under Rule 35(b) to reduce a sentence, and its ruling will n......