United States v. Koneski, 323 F.2d 862 (4th Cir. 1963)

No. 8977.

Argued Sept. 26, 1963.

Decided Oct. 18, 1963.

Richard S. Tilley, Roanoke, Va. (Court-assigned counsel), for appellant.

James C. Roberson, Asst. U. S. Atty., for appellee.

Before BOREMAJST and BRYAN, Circuit Judges, and NORTHROP, District Judge.

PER CURIAM.

Felix Francis Koneski appeals from an order denying his motion for reduction or modification of sentence on the ground that the district court considered his prior criminal record, as disclosed by the report of a probation officer, in sentencing him to imprisonment for a term of thirty months while sentencing two others indicted with him and convicted of the same offense to terms of only twenty-four months.

It is well settled that the judge in imposing sentence may properly give consideration to matters contained in the report of a probation officer. Klingstein v. United States, 217 F.2d 711 (4th Cir., 1954); Olson v. United States, 234 F.2d 956 (4th Cir., 1956); Call v. United States, 265 F.2d 167 (4th Cir., 1959).

The motion from which the appeal is taken was not timely made. Koneski wás convicted and sentenced on March 19, 1962, and the motion was filed almost ten months later on January 16, 1963. Rule 35 Fed.R.Crim.P. provides that a court may reduce a sentence within sixty days after the sentence is imposed. Rule 45(b) Fed.R.Crim.P. provides that the court may not enlarge the period for taking any action under Rule 35. We perceive no error in the denial of appellant’s motion.

Affirmed.