                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

No. 96-2027

                       ROBERT E. JOYCE,

                    Plaintiff, Appellant,

                              v.

               JAMES E. CRAWFORD, ETC., ET AL.,

                    Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Patti B. Saris, U.S. District Judge]

                            Before

                    Selya, Cyr and Boudin,
                       Circuit Judges.

Robert E. Joyce on brief pro se.

Donald K.  Stern, United States  Attorney, and  Roberta T.  Brown,

Assistant  United  States  Attorney,  on  brief  for  appellees  James
Crawford, James Farmer, Steven Heymann and Janet Reno.
Merita A. Hopkins, Corporation  Counsel, and Susan M. Weise, Chief

of  Litigation, City of Boston  Law Department, on  brief for appellee
Police Officer Coleman.

                        April 22, 1997

          Per  Curiam.      Robert  Joyce  appeals  from  the

district  court's denial of his motion to amend his complaint

and its dismissal of  his action under Heck v.  Humphrey, 512

U.S.  477 (1994).   After  careful review  of the  record, we

affirm the judgment below substantially for the reasons given

by  the district court in its Memorandum and Order dated July

1, 1996, and in its Order dated August 2, 1996, but we modify

the judgment  of  dismissal to  be  without prejudice.    See

Guzman-Rivera v.  Rivera-Cruz, 29 F.3d  3, 6 (1st  Cir. 1994)

(indicating  that  claims  dismissed  under Heck  are  to  be

dismissed without prejudice for prematurity).

          Affirmed, but the judgment of dismissal is modified

to be without prejudice.

                             -2-


                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

       ________________               *
                                      *
          No. 05-2367                 *
       ________________               *
                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
John H. Sitting Bear,                 *
                                      *
            Appellant.                *      Appeals from the United States
                                      *      District Court for the
       ________________               *      District of South Dakota.
                                      *
          No. 05-2368                 *
       ________________               *
                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Melinda L. Marshall,                  *
                                      *
            Appellant.                *

                              ________________

                              Submitted: January 11, 2006
                                  Filed: February 7, 2006
                              ________________
Before MURPHY, HANSEN, and SMITH, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       John H. Sitting Bear pleaded guilty to committing second degree murder in
Indian country, 18 U.S.C. §§ 1153 and 1111, and Melinda L. Marshall pleaded guilty
to aiding and abetting second degree murder in Indian country, 18 U.S.C. §§ 1153,
1111, and 2, following the tragic death of their four-year-old son, John, Jr. The
district court1 sentenced each of them to 228 months (19 years) of imprisonment, from
which they both appeal. We affirm as to each defendant.

                                   I. Background

       Sitting Bear and Marshall were the parents of four-year-old John, Jr., who died
following a period of abuse by Sitting Bear and Marshall. Marshall's sister raised
John, Jr. from the time of his birth until he was almost four years old while Marshall
was serving time in federal prison for assault with a deadly weapon. Marshall and
Sitting Bear fought for and won custody of John, Jr. around Christmas 2002. He died
less than six months later on June 19, 2003.

       Marshall and Sitting Bear each accused the other of various forms of abuse
against John, Jr. prior to his death. The evidence revealed that John, Jr. was toilet
trained when he was returned to his parents. Following his return to their custody,
Marshall got upset when John, Jr. made messes in his pants, and she often withheld
food from him so that she would not have to clean up after him. In the six months in
which John, Jr. was under Marshall's and Sitting Bear's care, he lost 19 pounds,
weighing only 30 pounds at the time of his death. Marshall also spanked John, Jr.

      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                         -2-
with the metal handle of a fly swatter on his back, legs, and buttocks. According to
Sitting Bear, these beatings were nearly daily. Sitting Bear was a forest firefighter and
was away from home for stretches at a time. Although he left the primary discipline
to Marshall, Marshall claimed that Sitting Bear frequently spanked John, Jr. with a fly
swatter, belt, or curtain rod as well.

       Both defendants claimed that the other beat John, Jr. on the evening of June 17.
It is undisputed, however, that on June 18, Sitting Bear woke John, Jr. early in the
morning as Sitting Bear was getting ready for a firefighter training class and sent
John, Jr. out to the outhouse to use the bathroom. Unsatisfied with John, Jr.'s slow
pace, Sitting Bear shoved John, Jr. out the door, causing John, Jr. to fall on the
cement. John, Jr. was still moving slowly when he returned to the house, so Sitting
Bear shoved him again, this time pushing him into a wall. Sitting Bear then picked
him up and swung him around by his arm, swinging his head into a table. John, Jr.
was unresponsive following the blow to his head. Sitting Bear and Marshall took
John, Jr. to the Rosebud hospital, and he was transported by air ambulance to Rapid
City Regional Hospital where he died the following day. Both were charged with first
degree murder and aiding and abetting first degree murder. Sitting Bear ultimately
pleaded guilty, without the benefit of a written plea agreement, to second degree
murder, and Marshall pleaded guilty, pursuant to a written plea agreement, to aiding
and abetting second degree murder.

       At the joint sentencing hearing held in May 2005, Sitting Bear and Marshall
continued to blame the other for various abuses to John, Jr., although Sitting Bear
admitted to his actions on June 18 that led to John, Jr.'s death. The district court
assessed a two-level enhancement to Sitting Bear's base offense level for obstruction
of justice based on Sitting Bear's interviews with the FBI investigators. The court also
granted Sitting Bear a three-level reduction for acceptance of responsibility, resulting
in a sentencing range of 151 to 188 months. The court determined that upward
departures no longer exist after United States v. Booker, 543 U.S. 220 (2005), and,

                                           -3-
applying the sentencing factors contained in 18 U.S.C. § 3553(a), sentenced Sitting
Bear to a non-Guidelines sentence of 228 months of imprisonment. The district court
determined Marshall's sentencing range to be 151 to 188 months, based in part on a
criminal history category III. Marshall had a prior felony conviction for assault with
a deadly weapon and was on supervised release from that conviction at the time of the
instant offense. Although not included in her criminal history score, Marshall also
had a prior child neglect conviction in tribal court (involving a different child) and
several child abuse arrests over the previous several years. The court likewise
sentenced Marshall to 228 months in prison, noting the irony of the fact that while
Marshall had committed most of the abuse over the prior six months in which she and
Sitting Bear had custody of John, Jr., it was Sitting Bear's actions that led to his
ultimate death. The court found them equally culpable in John, Jr.'s death.

      Sitting Bear appeals his sentence, arguing that the district court erred in
assessing the two-level enhancement for obstruction of justice, erred in sentencing
him above the sentencing range without giving notice under Federal Rule of Criminal
Procedure 32(h), and violated his right to due process by sentencing him above the
advisory Guidelines range without considering the departure factors contained in the
United States Sentencing Guidelines, resulting in an unreasonable sentence. Marshall
appeals her sentence, arguing that it is an unreasonable sentence in light of the
§ 3553(a) sentencing factors.

                                Sitting Bear's Sentence

      A.     Rule 32(h) Notice
      Sitting Bear's sentence above the advisory Guidelines range was not based on
an upward departure for which he was entitled to notice under Rule 32(h).2 Rather,

      2
       "Before the court may depart from the applicable sentencing range on a ground
not identified for departure either in the presentence report or in a party's prehearing
submission, the court must give the parties reasonable notice that it is contemplating
                                          -4-
it was a non-Guidelines sentence, a variance if you will, based upon the district court's
review of the case and Sitting Bear's history in light of all of the § 3553(a) sentencing
factors. Sitting Bear's claim to Rule 32(h) notice lacks merit under our circuit
precedent, see United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005)
("[N]otice pursuant to Rule 32(h) is not required when the adjustment to the sentence
is effected by a variance, rather than by a departure."); United States v. Egenberger,
424 F.3d 803, 805 (8th Cir. 2005) (same), cert. denied, 2006 WL 37949, 74 U.S.L.W.
3393 (U.S. Jan. 9, 2006), and the district court did not err in failing to give Sitting
Bear any Rule 32(h) notice.

      B.      USSG § 3C1.1 Obstruction of Justice Enhancement

       Sitting Bear argues that his interviews with the investigators did not amount to
an obstruction of justice warranting a two-level enhancement under U. S. Sentencing
Guidelines Manual (USSG) § 3C1.1 (2003). We review the district court's factual
findings used to support an obstruction of justice enhancement for clear error, but we
apply a de novo review to the application of the enhancement to the facts found by the
district court. United States v. Vinton, 429 F.3d 811, 818 (8th Cir. 2005).

       The obstruction of justice enhancement applies if the defendant "willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice during the course of the investigation . . . of the instant offense of conviction."
USSG § 3C1.1. One example of behavior that triggers the enhancement is when a
defendant "provid[es] a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation . . . of the instant
offense."Id. § 3C1.1, comment. (n.4(g)). "Material" is defined as "evidence, fact,
statement, or information that, if believed, would tend to influence or affect the issue
under determination." Id., comment. (n.6).

such a departure. The notice must specify any ground on which the court is
contemplating a departure." Fed. R. Crim. P. 32(h).
                                            -5-
       Sitting Bear met with investigators several times beginning on June 18, the day
John, Jr. went into a coma and was hospitalized. Sitting Bear originally told FBI
agents on that date that John, Jr.'s injuries resulted from him falling off of the hood of
a parked car a few days prior to going into the coma. Sitting Bear denied ever hitting
John, Jr. Sitting Bear met with the agents two days later on June 20, after John, Jr.
had died, and added to his story that John, Jr. had fallen off of his bike a week prior
to entering the coma, had been knocked down by a dog, and had recently fallen from
a jungle gym. At this time Sitting Bear admitted to pushing John, Jr. out of the door
the morning that he went into the coma, causing him to hit his head on the cement
porch, but he continued to deny any further involvement.

       Sitting Bear and Marshall were both indicted on first degree murder charges in
August 2003. During an interview in February 2004, Sitting Bear told investigators
that Marshall had hit John, Jr. on the evening of June 17, knocking his head into a
door frame. It was not until an interview on April 7, 2004, nearly ten months after
John, Jr.'s death, that Sitting Bear told investigators about swinging John, Jr.'s head
into the table.

       The district court found that Sitting Bear lied on June 18 when he told the
investigators that John, Jr.'s injuries resulted from falling off of a parked car three days
earlier and when he denied hitting John, Jr. Sitting Bear's argument that the other
events that might have caused John, Jr.'s injuries actually happened, and therefore he
did not lie, misses the point. He may not have lied about the other accidents
occurring, but he certainly misled the investigators about the cause of John, Jr.'s
injuries that put him into a coma. We further reject Sitting Bear's brazen attempt to
construe his statement that he did not hit John, Jr. as technically truthful. Sitting
Bear's denial that he hit John, Jr., knowing full well that he had shoved John, Jr. into
a wall and swung his head into a table immediately prior to John, Jr. losing
consciousness, was a blatant lie in an attempt to place the blame for his son's injuries

                                            -6-
elsewhere. The district court's conclusion that Sitting Bear lied to the investigators
is not clearly erroneous.

       Lying to investigators in and of itself does not support a § 3C1.1 enhancement
for obstructing justice. The false statements must have been material to the
investigation. Further, general denials of guilt that are not made under oath do not
support an obstruction enhancement. See United States v. Yankton, 986 F.2d 1225,
1228 (8th Cir. 1993) (holding that a statement to tribal officers that "I did not rape .
. . my niece" was a general denial which would not support an obstruction
enhancement). But Sitting Bear did more than deny his guilt. He misled the
investigators with stories unrelated to his own actions in an attempt to divert the
investigators from focusing their attention on him, and he denied his own
involvement. The misleading stories and denial of any involvement were certainly
material to the investigation into the cause of John, Jr.'s injuries.

       We also agree with the district court that Sitting Bear's misleading statements
impeded the investigation. One of the investigators testified that Sitting Bear's
admission in April 2004 that he swung John, Jr. into the kitchen table "was a
significant step forward in the investigation." (Nov. 29, 2004, Sent. Tr. at 52.) Prior
to that time, the investigators were focused on both parents as the cause of John, Jr.'s
death, but the investigators had no basis for determining which of the two was
responsible for the ultimate act that sent John, Jr. into a coma and caused his death.
In February 2004, Sitting Bear implicated Marshall by telling the investigators that
Marshall had knocked John, Jr. into a door frame the night before he went into the
coma, but Sitting Bear continued to withhold the extent of his own actions on the
morning of June 18. Although Sitting Bear had no obligation to tell investigators
anything, once he chose to talk, he had an obligation to be truthful. Sitting Bear's
exculpatory explanations and attempts to point the finger at his codefendant without
providing the full picture of his own actions support the district court's application of

                                           -7-
the obstruction of justice enhancement. See United States v. Baker, 200 F.3d 558, 562
(8th Cir. 2000) (holding that statements to the investigator that provided an
exculpatory version of events and caused the investigator to conduct further analysis
of financial transactions was more than a mere denial of guilt and supported an
obstruction enhancement).

      C.     The Reasonableness of Sitting Bear's Sentence

        At sentencing, the district court stated that following Booker, "[t]here's no such
thing as an upward departure." (May 9, 2005, Sent. Tr. at 72; see also id. at 68, 71.)
We agree with Sitting Bear that the district court clearly erred in so concluding. As
we explained in United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert.
denied, 126 S. Ct. 276 (2005), post-Booker, there are essentially three steps to
determining an appropriate sentence. First, the district court should determine the
applicable Sentencing Guidelines range without consideration of any Guidelines
departure factors, because the Guidelines remain an important sentencing factor. See
§ 3553(a)(4). Second, the district court, where appropriate, should consider the
departure provisions contained in Chapter 5, Part K and/or § 4A1.3 of the Guidelines,
as those sentencing provisions have not been excised by Booker. The resulting range
is the post-Booker advisory Guidelines range. Third, the district court should consider
the rest of the § 3553(a) factors in determining whether to impose the "Guidelines
sentence" as determined in the prior steps or a "non-Guidelines sentence" driven by
the other § 3553(a) considerations, and sentence the defendant accordingly. Haack,
403 F.3d at 1003; see also United States v. Denton, No. 05-1978, 2006 WL 162980,
at *7 (8th Cir. Jan. 24, 2006) (reviewing the sentence imposed by the district court
under the three-part Haack methodology). "When a court of appeals reviews a district
court's sentencing determination for reasonableness, the correct [G]uidelines range is
still the critical starting point for the imposition of a sentence." United States v. Hawk

                                           -8-
Wing, No. 05-2263, 2006 WL 27681, at *7 (8th Cir. Jan. 6, 2006) (internal marks
omitted).

       Sitting Bear argues that the district court's failure to consider an upward
departure under the Haack analysis deprived him of due process because it allowed
the district court to circumvent the assessment of justifying factors contained in the
departure Guidelines. Although the district court erred, the error was harmless. As
we recently noted in rejecting a similar argument in Long Soldier:

      The district court's erroneous belief that it could not depart upward did
      not deprive [Sitting Bear] of any substantial-or even beneficial-right. He
      was deprived merely of the opportunity to receive an upward departure
      and, perhaps, a longer sentence. As such, any error is harmless pursuant
      to Fed. R. Crim. P. 52(a).

431 F.3d at 1122. Further, there can be no due process violation without a showing
of undue harshness, see United States v. Wade, No. 05-2181, 2006 WL 73474, at *2
(8th Cir. Jan. 13, 2006), which is totally lacking here.

       Finally, Sitting Bear has failed to establish that his ultimate sentence is
unreasonable, i.e., that the district court abused its discretion in sentencing him to 228
months of imprisonment, or 40 months above the advisory Guidelines range
(computed without considering any grounds for an upward departure). After
considering Sitting Bear's minimal criminal history, background, and the specific facts
of the case, the district court stated, "[t]his is such an aggravated case. It is one thing
to cause the death of your child. But with this amount of torture that was going on I
am, of course, going to take that into account in sentencing here." (May 9, 2005, Sent.
Tr. at 79.) We conclude that the sentence is not unreasonable.

                                            -9-
                              III. Marshall's Sentence

       The only challenge Marshall makes to her sentence is its reasonableness. We
review the sentence imposed by the district court for an abuse of discretion. Long
Soldier, 431 F.3d at 1123. "A sentencing court abuses its discretion if its fails to
consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or considers only the
appropriate factors but commits a clear error of judgment in weighing those factors."
Id. Relevant factors for sentencing purposes are those factors identified in § 3553(a).

      Marshall points to § 3553(a)(6), the need to avoid unwarranted sentencing
disparity, and argues that she should have been sentenced based on her actual conduct,
which was child abuse. She believes that her 228-month sentence is extreme when
compared to two cases where defendants convicted of abusing children received
sentences of 51 and 63 months. We dismiss this disparate sentencing argument by
noting simply that those cases did not involve the six months of torture endured by
John, Jr. at the hands of his own mother or result in the children's death. Marshall
pleaded guilty to aiding and abetting second degree murder, not to committing child
abuse. Whoever aids and abets the commission of another crime is punishable as a
principal. 18 U.S.C. § 2. This is not the type of disparity with which Congress was
concerned.

       The district court found that Marshall and Sitting Bear were equally culpable
for the actions that led to and ultimately caused John, Jr.'s death. It supported its
sentence with findings that "up until the last day of [John, Jr.'s] life [Marshall] was
responsible for more of this child abuse than was Mr. Sitting Bear." (May 9, 2005,
Sent. Tr. at 72.) In addition, John, Jr. had at least seven impact injuries to his head
and 26 separate impact injuries to his back, buttocks, and legs. There was ample
evidence of nearly daily abuse, mostly by Marshall. The pathologist who performed

                                         -10-
the autopsy could not determine whether John, Jr.'s death was caused by the June 18
blow to his head or a combination of blows, some of which were older. During the
six months that John, Jr. was in his mother's and father's care, he lost 19 pounds.
Numerous witnesses testified that Marshall withheld food from him because he
messed his pants and she did not like cleaning up after him. The district court
considered Marshall's childhood, history of prior abuse toward her children, and the
testimony of various witnesses in setting Marshall's sentence 40 months above the
advisory Guidelines range. The district court amply supported the sentence it imposed
on Marshall, which we believe is more than reasonable.

       We likewise reject Marshall's argument that the district court erroneously
considered her criminal history in sentencing her outside of the Guidelines range
because her history was included in the Criminal History category III that resulted in
the 151- to 188-month advisory range. The district court relied in part on the abuse
inflicted against John, Jr., as well as abuse inflicted against her other children, none
of which was reflected in Marshall's criminal history. There was no improper double
counting of Marshall's criminal history.

                                   III. Conclusion

      The district court's judgments are affirmed.
                       ______________________________

                                          -11-


188 F.2d 721
51-1 USTC  P 9282
AMERICAN PITCH PINE EXPORT CO., Inc.v.COMMISSIONER OF INTERNAL REVENUE.
No. 13289.
United States Court of Appeals, Fifth Circuit.
May 1, 1951.

Robert Ash, Washington, D.C., for petitioner.
Carolyn R. Just, Ellis N. Slack, Melva M. Graney, Spl. Assts. to Atty. Gen., Theron Lamer Caudle, Asst. Atty. Gen., Charles Oliphant, Chief Counsel, W. Herman Schwatka, Spl. Atty., Bureau of Int.  Rev., Washington, D.C., for respondent.
Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.
BORAH, Circuit Judge.

1
This petition for review involves an alleged deficiency in income tax for the fiscal years ending October 31, 1941, and October 31, 1942, declared value excess profits tax for the fiscal year ending October 31, 1942, and excess profits tax for the fiscal years ending October 31, 1942, and October 31, 1943.  Two questions are presented: (1) Whether under the applicable provisions of the Internal Revenue Code1 the Tax Court's findings of reasonable allowances for compensation for personal services rendered by eight of taxpayer's officers and employees for the years aforementioned were clearly erroneous; and (2) whether the taxpayer, in computing its income for the fiscal year 1943, is authorized under Section 22(c) of the Internal Revenue Code, 26 U.S.C.A. 22(c), to use an October 31, 1943 estimated inventory of 20 piles of resawed lumber in preference to an inventory by actual count available to taxpayer following the close of its fiscal year, but prior to the due date of its 1943 return.

2
The material facts relating to the question of reasonable allowances for compensation reveal that prior to the European War in 1939 taxpayer had an established position in the lumber export market but when this country entered the war its entire export business was regarded as temporarily lost.  Faced with the same situation, other large lumber export companies decided that a transition to a domestic lumber business was impossible, but taxpayer thought otherwise, and its officers and other key employees worked hard and were successful in adjusting taxpayer's operations to the domestic lumber trade.  And in so doing its officers and key employees frequently worked seven days a week and at night, although prior to 1941 they worked only five and one-half days a week.

3
From 1935 to 1940 taxpayer did not materially increase the compensation paid to its officers and key employees but beginning in the fiscal year 1941, as will more fully appear from the tabulation set forth in the margin,2 very substantial raises in pay were given the eight officers and key employees whose compensation is here in question.  It will be noted from the tabulation that the amounts paid each of these employees in 1942, with one exception,3 represented increases of more than 100% over those paid to the same individuals in 1940.  Indeed, most of these employees received compensation far in excess of their 1940 pay.  But the significant fact is that these were not truly arms-length dealings for all of these employees were stockholders of taxpayer.  In the taxable year 1941, their combined stock holdings controlled taxpayer; in 1942 and 1943, they owned all of taxpayer's stock.  During the fiscal year 1942 taxpayer paid its stockholder-employees additional compensation or bonuses on four different occasions within a period of six months, the largest amount, $18,417.95, being paid to taxpayer's president, Burtis, who owned 667 of the 1,000 shares of outstanding stock.  In the same year, taxpayer made a net profit before taxes of $118,920.90, which was several times as much as it had made in any previous year,4 but paid only $25,000 in dividends despite the fact that it had paid $30,000 in 1937 and $31,000 in 1938, when its earnings were very much less.5  In the fiscal year 1943 taxpayer made a net profit before taxes of $65,385.47 but paid no dividend.

4
No good purpose would be served by setting forth in detail the opinion testimony of taxpayer's expert witnesses to the effect that compensation paid to certain of taxpayer's officers was entirely reasonable, nor the Government's evidence with respect to salaries paid to corresponding officers of two lumber companies engaged in the export trade.  Of course, the testimony offered by each side was favorable to its position but the Tax Court was not required to accept the testimony of either the Government or the Taxpayer and it did not do so but reached its own independent conclusion after resorting to all the aids offered by the record.

5
Numerous decisions indicate that the question of a reasonable allowance for salaries or other compensation under the provisions of Section 23(a)(1)(A) of the Internal Revenue Code and applicable Treasury Regulations is purely a factual one, the resolution of which is committed to the trier of facts, in this case the Tax Court.  Trust of Bingham v. Commissioner, 325 U.S. 365, 370, 65 S.Ct. 1232, 89 L.Ed. 1670; Gem Jewelry Co. v. Commissioner, 5 Cir.,  165 F.2d 991; Leedy-Glover & Insurance Realty Co. v. Commissioner, 5 Cir.,  184 F.2d 833.  The Tax Court's finding of an amount constituting reasonable compensation is to be accepted unless clearly erroneous.6  Certainly there is a rational basis in the evidence here for the conclusions arrived at by the Tax Court.  Furthermore, its opinion shows that it weighed all the relevant evidence bearing on the subject, including those factions favorable as well as those unfavorable to the taxpayer.  And the amounts allowed as reasonable compensation for 1942 and 1943 were upwards of 100% more than the amounts of compensation taxpayer had paid the same persons in 19407 .

6
Turning now to the inventory issue, it appears that at the close of taxpayer's fiscal year ending October 31, 1943, it had on hand 20 piles of resawed lumber, being the waste pieces acquired in cutting large timber to specific sizes.  These waste pieces of various widths and lengths were not separated as to size in the piles.  This was in accordance with the common practice in the lumber business.  At that time it was not feasible to take a physical inventory of the 20 piles of lumber and in accordance with trade practices taxpayer's most experienced lumber inspectors examined the piles of lumber and estimated the footage to be 830,000 board feet.  The estimate was accurate as an estimate and the estimated inventory was used by taxpayer in preparing its 1943 tax return.  However, prior to the due date of the 1943 tax return the lumber was sold to the Government and the footage by actual count was found to be 896,723 board feet.  Taxpayer's use of the smaller of the two inventories, of course, increased the cost of goods sold during the fiscal year 1943 and reduced taxpayer's income from sales.

7
While we agree with taxpayer that use of an accurate estimated inventory would be proper in a situation where an inventory based on actual count is not feasible or available, we conclude, as did the Tax Court, that there is no justification for use of an estimated inventory when, as here, an inventory by actual count is available to show the error of the estimated inventory and clearly to reflect the taxpayer's income.

8
The judgment of the Tax Court is affirmed.

1
 Sec. 23 of the Internal Revenue Code, 26 U.S.C.A. § 23, reads in part as follows:
'Sec. 23.  Deductions from gross income.  In computing net income there shall be allowed as deductions:
'(a) (as amended by Sec. 121 of the Revenue Act of 1942, c. 619, 56 Stat. 798) Expenses.
'(1) Trade or business expenses.
'(A) In general.  All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * .'

2
 Taxpayer paid its officers and stockholder-employees the following amounts which were designated as compensation for services:
                                YEARS ENDED
      EMPLOYEE   10-31-40    10-31-41    10-31-42    10-31-43
-------------------------------------------------------------
J. E. Burtis    $9,000.00  $19,000.00  $38,917.95  $32,500.00
T. A. Stubbs     5,100.00    7,080.00   14,608.95   16,250.00
L. N. Hobbs      3,600.00    5,100.00   11,667.16   13,000.00
E.  H. Albrecht   4,140.00    5,640.00   11,712.16   13,000.00
A.  Campodonico   3,000.00    4,500.00    7,083.60    7,800.00
W. H. Tippin     2,862.50    5,175.00   11,867.16   13,000.00
C. R. Holloway   2,547.81    4,689.12   12,834.20   11,050.00
W. B. McDavid    6,343.15    3,673.89    2,262.67    2,400.00

3
 McDavid was taxpayer's exclusive representative in Argentina.  In the taxable years in question the Argentine market was closed and compensation paid to McDavid was in the nature of a fee to retain his services for the day when the export market would again be open
Taxpayer's net profit before taxes for the fiscal years ended October 31, 1936, through 1943, is as follows:
1936  $37,544.15  1940  $16,519.67
1937   21,943.32  1941   29,615.85
1938   38,351.32  1942  118,920.90
1939   24,185.60  1943   65,385.47
The amounts designated as dividends and paid by taxpayer during the eight years ended October 31, 1943, were as follows:
10-31-36    None       10-31-40        None
10-31-37  $30,000.00   10-31-41        None
10-31-38  31,000.00   10-31-42   $25,000.00
10-31-39   18,100.00   10-31-43        None

6
 Section 1141(a), Internal Revenue Code, as amended by the Act of June 25, 1948, c. 646, 62 Stat. 869; Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A

7
 The Tax Court allowed the following amounts as reasonable compensation:
                                            YEARS ENDED
   EMPLOYEE              10-31-41            10-31-42                  10-31-43
-------------------------------------------------------------------------------
Burtis                  $15,000.00          $22,500.00               $25,000.00
Stubbs                   7,080.00            11,250.00                12,500.00
Hobbs                    5,100.00            9,000.00                 10,000.00
Albrecht                 5,640.00            9,000.00                 10,000.00
Campodonico              4,500.00            6,000.00                  7,000.00
Tippin                   5,175.00            9,000.00                 10,000.00
Holloway*                ........            ........                  4,250.00
McDavid                  1,500.00            1,500.00                  1,500.00
*until July 1, 1943, Holloway was operating a freight brokerage
business on his own account.  In 1942 he handled petitioner's business on a
flat fee of $1,100 per month.  The Tax Court allowed the amount claimed for
the part of 1943 in which Holloway was an employee of taxpayer.


15 F.3d 180
Dutyv.Collins*
NO. 93-01431
United States Court of Appeals,Fifth Circuit.
Jan 13, 1994

1
Appeal From:  N.D.Tex.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


361 So.2d 1195 (1978)
Phillip MATTHEWS
v.
STATE.
8 Div. 61.
Court of Criminal Appeals of Alabama.
August 29, 1978.
*1196 Phillip Matthews, pro se.
William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen. for the State, appellee.
CLARK, Retired Circuit Judge.
A jury found appellant guilty of forgery of a check drawn on First Alabama Bank of Huntsville for the sum of Three Hundred Nine Dollars and Forty Cents, which constitutes forgery in the first degree. Code of Alabama, Recomp. 1958, Tit. 14, § 199. The court fixed his punishment at imprisonment for five years, which is within the limits prescribed by Tit. 14, § 207.
Defendant was at first represented by employed counsel. In the course of such representation a trial of defendant was commenced, but a mistrial was ordered and the case continued for trial at the request of defendant. Upon the call of the case for trial that resulted in the conviction from which this appeal was taken, defendant informed the court that he was dissatisfied with his employed counsel and requested the court to appoint him counsel, and not appoint the counsel whom he had employed. The court complied with the request and appointed counsel to represent defendant as an indigent and held the case in abeyance until the next day, in order for defendant and his appointed counsel to prepare together for the trial.
*1197 Upon call of the case for trial the next day, his appointed counsel informed the court that defendant had asked him "to ask the court if he would be allowed to represent himself without the benefit of an attorney." After a lengthy colloquy between the court and defendant, in which defendant continued to insist that he be allowed to represent himself, and a warning from the court that he was making a mistake, the court allowed him to represent himself on the trial, with the understanding, which was agreeable to defendant, that his appointed counsel would sit with him and be with him to assist him in defending himself, which said counsel did.
Defendant made a preliminary motion for a psychiatric examination, but in the course of a discussion of it, he withdrew the motion and requested the court to "proceed with the trial."
Donna Hopper testified that while she was employed by First Alabama Bank of Huntsville on August 4, 1977, she was presented a check by defendant that purported to be a check drawn on said bank by Sledge Upholstery, dated August 4, 1977, and payable to Reggie Hyder for the sum of Three Hundred Nine Dollars and Forty Cents. She positively identified defendant as the person who presented the check. She recalled that at the time the check was presented she took a nondriver's I.D. card with the name Reggie Hyder thereon as identification. She said defendant presented the check to her for deposit, "less cash," that only thirty dollars of the amount was actually deposited to the account of Reggie Hyder and the balance of two hundred seventy-nine dollars and forty cents was delivered to defendant.
James Sledge, owner of Sledge Upholstery, testified that defendant had worked for him about a month, but that the purported check of Sledge Upholstery for three hundred nine dollars and forty cents was not signed by him or by anyone authorized by him to sign such a check. He said the purported signature of James Sledge on the check was not the witness' signature. He further said he did not know Reggie Hyder, whose name was on the check as the payee thereof. According to the witness, the check was on one of the printed forms of checks being used by Sledge Upholstery and that while defendant was working for the company defendant had access to the company checks, which were kept under the office desk. The particular check was similar in form to three cancelled paychecks of the previous month which were payable to defendant and which were admitted in evidence.
Defendant himself did not testify, but he presented evidence of the operations of the License Department of the Alabama Department of Public Safety showing that upon proper identification and the payment of a fee, a non-driver can obtain an I.D. card, that a Reggie Hyder had been issued a non-driver's I.D. card, but no Reggie Hyder had been located.
When defendant stated he would take an appeal from the conviction, the court first appointed as his attorney on appeal the same attorney that represented him on the trial, but upon the request of appellant that he "be permitted to perfect and direct his own appeals," the court relieved appellant's former attorney "from further proceeding in this matter" and appointed another highly regarded attorney of the Huntsville Bar "to assist the defendant" on appeal. Appellant has made his appearance in a pro se brief in which he acknowledges the assistance of counsel appointed by the court to assist him.
In the first part of his brief, appellant argues for a reversal on account of alleged failure of his counsel to obtain a preliminary hearing and refusal to "present the probable cause question to the court, as well as the question of illegal arrest." There is nothing in the record to support appellant's assertion. Furthermore, as there is an indictment upon which the prosecution is based, the matters complained of furnish no cause for a reversal as they have no bearing on the validity of proceedings that are based upon a valid indictment. Queor v. State, 278 Ala. 10, 174 So.2d 687 (1965); Bowman v. State, 44 Ala.App. 331, *1198 208 So.2d 241 (1968); Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. denied 291 Ala. 776, 280 So.2d 797 (1973); Jordan v. State, 56 Ala.App. 55, 318 So.2d 793, cert. denied, 294 Ala. 761, 318 So.2d 801 (1974); Scaife v. State, Ala.Cr.App., 337 So.2d 146 (1976).
It appears that while Donna Hopper was testifying, she was shown a photograph which she testified had been exhibited to her by Howard Bolling, a parole officer, a short time after August 4, 1977. She testified that the photograph was the likeness of defendant. The photograph was never admitted or offered in evidence, although defendant at one time while holding the photograph in his hand exhibited it to the jury and stated that he would "like to exhibit it to the jury." Reference was made in her testimony to other photographs of defendant that Mr. Bolling had shown her after August 4, 1977. It appears that no photographs of persons other than defendant were shown her by Mr. Bolling.
Appellant contends that the fact that the witness was shown photographs of defendant by Mr. Bolling, and of nobody else, constituted such impermissibly suggestive identification procedure as to taint and thereby vitiate her in-court identification of defendant.
Whether an in-court identification has been so tainted by an extrajudicial identification as to vitiate the in-court identification is not to be determined solely by the circumstances of the extrajudicial identification, but all of the circumstances relative to the identification of defendant by the witness are to be taken into consideration, and if it is determinable therefrom that an in-court identification was independent of the extrajudicial identification, evidence of the in-court identification is admissible. Spears v. State, 57 Ala.App. 525, 329 So.2d 579, cert. denied 295 Ala. 420, 329 So.2d 582 (1976); Impson v. State, Ala.Cr. App., 331 So.2d 837, (1976); Cross v. State, Ala.Cr.App., 351 So.2d 698 (1977); Brown v. State, Ala.Cr.App., 342 So.2d 1367 (1977); Donilson v. State, Ala.Cr.App., 350 So.2d 738 (1977).
Obviously cognizant of the principle of law just stated, the trial court questioned the witness on the particular point in a hearing out of the presence of the jury, as shown by the following:
". . . Let me ask you this, please M'am; are you testifying in court as to identification of this witness based on the appearance of the photograph or from your own personal knowledge?
"A My own personal knowledge.
"THE COURT: And your recollection of him at that time?
"A Yes, sir."
We are convinced that the record supports the quoted statement of the witness to the effect that no photographs shown her by Mr. Bolling had any influence upon her in-court identification of defendant, and, therefore, did not taint the incourt identification. She was positive as to her recollection of defendant as he presented the allegedly forged check to her for a "less cash" deposit. It was a part of her duty to the bank at that time to identify the one presenting the check as the person named in it as payee and as the person whose photograph on the non-driver's identification card was exhibited to her for comparison. In addition, the witness said that prior to the date of the alleged forgery she had had occasion to see the defendant when she was working out at the drive-in area of the same bank. Appellant asserts as error the action of the court in allowing the State to present testimony by another witness, Connie Tucker, of another forgery by appellant of another purported check of Sledge Upholstery on August 4, 1977. That check was also payable to Reggie Hyder and was for three hundred nine dollars and sixty cents. It appears that a separate indictment was returned against appellant for the forgery of that check, that he has been tried and convicted as to that indictment and has appealed his conviction. Notwithstanding the general rule that evidence of another crime is not usually admissible in a particular case, the evidence here considered is admissible *1199 under at least two exceptions (criminal intent and identity) to the general rule of exclusion.
"The crime of forgery in Alabama has, as its crucial element, a requisite intent on the part of the defendant to defraud. As tending to prove this intent, the State is allowed to introduce evidence that the accused forged other paper of a similar kind at or about the time of the commission of the charged offense, which purported to have been executed by the same person." Gamble, McElroy's Alabama Evidence, 3d Ed. (1977), § 70.01(11).
Included among the authorities cited by the author are Christison v. State, 41 Ala.App. 192, 142 So.2d 666 (1916), aff'd, 273 Ala. 564, 142 So.2d 676 (1962); Hall v. State, 21 Ala. App. 476, 109 So. 847, cert. denied 215 Ala. 148, 109 So. 849 (1926); Kirby v. State, 17 Ala.App. 151, 82 So. 641, cert. denied 203 Ala. 473, 83 So. 416 (1919).
Appellant states in his brief that the State "presented a witness posing under the disguise of defense witness" and says that the record incorrectly lists him as a defense witness and incorrectly indicates that he was called as a witness for the defense. The record shows that the witness was first interrogated by defendant and thereafter was cross-examined by the State. We do not find that the record is inaccurate in referring to the witness as defense witness. At any rate, such a reference to him in the record is a formality of the record that did not form a part of the actual trial of the case and thereby come to the attention of the jury and could not have been harmful to defendant.
Appellant lists a large number of questions asked witnesses by the prosecution and complains that they constitute leading questions. Some of them are not leading. As to some of them, no objections were made. As to any of them that were leading and as to which objections were made, we find that rulings of the court were well within its discretionary province in permitting leading questions on direct examination.
Appellant argues that the judgment and sentence should be reversed because of the reference to Mr. Howard Bolling as a parole officer during the interrogation of Donna Hopper as a witness for the State as to photographs of defendant shown her by Mr. Bolling. Appellant contends that such reference was prejudicial to him in that it tended to show that he had been previously convicted of crime. There may be good ground for the conclusion of probable injury from such reference, but we do not find that any effort was made by defendant, by objection, motion to exclude, motion for a mistrial, or other action, to eradicate the injury claimed. Defendant invoked no action of the court as to the particular point, and the court should not be charged with error as to it.
As a final contention, appellant claims that the attorney appointed by the court to assist him in the defense, he having elected to defend himself, "interfered with the defense." This contention is not supported by the record, in our opinion. The attorney had an obviously difficult role but one which defendant deliberately and knowingly chose for him to assume. On the whole, we find that he performed his duty well and that nothing that he did constituted an interference with the defense, as charged.
We have found no error in the record prejudicial to defendant and the judgment of the trial court should be affirmed.
The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby
AFFIRMED.
All the Judges concur.


832 P.2d 1134 (1992)
122 Idaho 199
STATE of Idaho, Plaintiff-Respondent,
v.
David Haight ATWOOD, Defendant-Appellant.
No. 18937/19165.
Court of Appeals of Idaho.
January 28, 1992.
Petition for Review Denied July 29, 1992.
*1135 Alan E. Trimming, Ada County Public Defender, Steven Botimer, Deputy Public Defender, Boise, for defendant-appellant.
Larry J. EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.
PER CURIAM.
David Haight Atwood pled guilty to sexual abuse of a child under sixteen, I.C. § 18-1506. The district court imposed a unified sentence of five years in the custody of the Board of Correction, with a minimum period of confinement of one year. Atwood was committed to the North Idaho Correctional Institute (N.I.C.I.) at Cottonwood. The sentence was imposed on February 13, 1990; however, the district court retained jurisdiction under I.C. § 19-2601(4) to obtain further evaluation reports. Atwood, through his counsel, filed a Rule 35 motion for reduction of sentence on March 21, 1990. The motion was denied by the district court on March 27, 1990, without an evidentiary hearing. Atwood did not appeal from this order. Upon expiration of the 120-day period, the district court extended jurisdiction for an additional sixty days, and thereafter, on September 18, 1990, relinquished retained jurisdiction. Atwood appealed from this order on September 28. On January 10, 1991, Atwood, pro se, mailed a second motion for reduction of sentence to the district court. The motion was received by the court on January 22, 1991, and was denied by the district court on January 24, 1991.
Atwood appeals the district court's order relinquishing jurisdiction. He also appeals from the order of the district court denying his second Rule 35 motion, arguing that he is entitled to file a second motion under Rule 35 and that the district court abused its discretion by not reducing his sentence. We affirm the district court's order relinquishing retained jurisdiction and dismiss the appeal with respect to its order denying relief under Rule 35.
The facts of this case are that Atwood solicited a 10-year-old boy by asking him if he wanted to learn how to masturbate. Atwood then demonstrated masturbation on himself in front of the boy. Atwood's prior record includes charges of injury to a child and issuing checks without funds. Dismissed via plea bargaining in the present case was a charge of lewd and lascivious conduct with a minor under sixteen which allegedly involved the anal penetration of Atwood's daughter, who was fifteen months old at the time of the incident.
Rule 35 provides, in pertinent part, "[N]o defendant may file more than one motion seeking a reduction of sentence under this Rule." Atwood requests an exception to the Rule which would allow a defendant to file a first motion under Rule 35 after the original sentencing hearing, and a second motion after a court decides to relinquish jurisdiction. There is no basis in the Idaho Criminal Rules or by statute for the exception Atwood seeks. Atwood's second motion was prohibited under Rule 35. The district court's summary order denying Atwood's second Rule 35 motion was not an order entered after judgment affecting substantial rights of the defendant, because Atwood had no right to file a *1136 renewed Rule 35 motion. Therefore, Atwood is not entitled to appeal the order under I.A.R. 11(c)(9). State v. Hickman, 119 Idaho 7, 802 P.2d 1219 (Ct.App.1990).
Atwood also contends the district court abused its discretion in relinquishing jurisdiction because it relied on an assertedly unfair report by the N.I.C.I. staff. The unfairness asserted is that: (1) the report assumed the dismissed charge of abuse of child allegedly involving his daughter to be true and concluded that Atwood was in denial of his problems since he denied any wrongdoing, (2) the report considered Atwood to be a second time sexual offender when his prior conviction was for injury to a child, not lewd conduct, and (3) that it misinterpreted Atwood to be arrogant and resistant to authority rather than to consider that his back injury caused from a fall from a ladder in 1978 made it difficult for him to successfully complete the 120-day N.I.C.I. program.
The purpose of retaining jurisdiction after imposing a sentence is to afford the trial court additional time for evaluation of the defendant's rehabilitation potential and suitability for probation. State v. Chapel, 107 Idaho 193, 687 P.2d 583 (Ct. App.1984). The decision to place a defendant on probation or whether, instead, to release jurisdiction over the defendant is a matter within the sound discretion of the trial court. See, e.g., State v. Williams, 112 Idaho 459, 732 P.2d 697 (Ct.App.1987); State v. Turner, 105 Idaho 748, 672 P.2d 1078 (Ct.App.1983). Absent an abuse of that discretion the court's decision will be sustained. State v. Lee, 117 Idaho 203, 786 P.2d 594 (Ct.App.1990). A hearing before the trial court is not required as a condition precedent to that court's relinquishing its 120-days retained jurisdiction under I.C. 19-2601(4). State v. Lopez, 102 Idaho 692, 638 P.2d 889 (1981); Williams, 112 Idaho at 460, 732 P.2d at 698.
Our Supreme Court has affirmed that dismissed criminal charges may be included within the presentence report. State v. Ott, 102 Idaho 169, 627 P.2d 798 (1981); see also State v. Terris, 106 Idaho 927, 684 P.2d 329 (Ct.App.1984). Atwood has presented us with no persuasive argument as to why dismissed criminal charges should not be considered in the further evaluative process employed at N.I.C.I. See I.C. § 20-220. Any reliance by the district court on this aspect of the N.I.C.I. evaluation was not an abuse of discretion.
The N.I.C.I. report did acknowledge Atwood's inability to remain employed full time due to his back injury. The reasons stated in the report for recommending relinquishment of jurisdiction included Atwood's inability to take responsibility for his actions, past record, and likelihood of reoffending. The report states: "No significant progress has been evidenced during his stay at NICI." In light of this report, we hold that the district court did not abuse its discretion by relinquishing its retained jurisdiction, as recommended by the Board of Correction.
In conclusion, Atwood's appeal from the summary order denying his second Rule 35 motion is dismissed as having been taken from a non-appealable order. The district court's order relinquishing retained jurisdiction is affirmed.


52 Cal.App.3d 419 (1975)
125 Cal. Rptr. 40
THE PEOPLE, Plaintiff and Appellant,
v.
LAWRENCE LEE HARRIS, JR., Defendant and Respondent.
Docket No. 26769.
Court of Appeals of California, Second District, Division Three.
October 23, 1975.
*421 COUNSEL
Joseph P. Busch, District Attorney, Harry B. Sondheim and Barry R. Levy, Deputy District Attorneys, for Plaintiff and Appellant.
Albert D. Silverman, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
THE COURT.[*]
By information defendant was accused of the crime of vehicular manslaughter. (Pen. Code, § 192, subd. 3(a).) He pleaded not guilty. Defendant moved to set aside the information pursuant to Penal Code section 995. At the hearing on the motion it was granted and the information was dismissed.
The People appeal from the order dismissing the information. The appeal lies. (Pen. Code, § 1238, subd. (a)(1).)

Facts
On May 15, 1974, Nicholas Orlandos, a reserve officer for the City of Hawthorne, was on routine patrol. At approximately 10:30 p.m. at the intersection of Broadway and Crenshaw he "observed two vehicles accelerate rapidly on a green light from Broadway going northbound" on Crenshaw. Officer Orlandos was about 50 to 75 yards behind the vehicles when he made that observation and he saw exhaust smoke pour out from behind them. The vehicle in lane number one was a yellow Pontiac Firebird and the vehicle in lane number two was a black-over-blue Dodge Charger. Officer Orlandos pursued them, but it was not until he *422 reached a speed of 100 miles an hour that he began to gain on them. At approximately 116th Street he activated his red lights and siren. The Pontiac Firebird began to slow down. The Dodge Charger continued to accelerate, turned eastward on 116th Street, and "ran all stop signs on 116th."
The officer pursued the Dodge Charger eastward on 116th Street. As the Charger approached a red light at Van Ness it did not make a complete stop before it turned right. The officer temporarily lost sight of the Charger until he turned onto Van Ness; there he saw the Charger turn eastward on 116th Street, which "branches over." The pursuit continued with the Charger travelling at speeds between 65 and 90 miles per hour and failing to stop at some boulevard stops. In the course of the pursuit southbound on Western Avenue, the police vehicle was travelling approximately 65 to 75 miles per hour when the Dodge Charger pulled away from it at a speed of approximately 100 miles per hour.
As Officer Orlandos was chasing the Charger northbound on Van Ness he observed a motorcycle officer make a "U" turn on Van Ness and take up pursuit of the Charger in front of Officer Orlandos. After the motorcycle officer entered the pursuit, Officer Orlandos kept his speed down to a cautionary 65 to 75 miles per hour and continued in pursuit of the Charger. The distance was increasing between Officer Orlandos' vehicle and the Dodge Charger followed by the motorcycle officer. As Officer Orlandos continued in pursuit on Van Ness the only thing that he observed was the motorcycle officer continuing in pursuit and the visibility of taillights on the Dodge Charger.
As Officer Orlandos approached Imperial Highway he observed the Dodge Charger cross on a green light and Officer McCarroll follow through on an amber light. Officer Orlandos began to apply his brakes about one block before Imperial Highway inasmuch as he was approaching a red light. He testified that his main concern was for the "motor officer" in front of him and he did not want to stay too close because he did not want to "run over" the motor officer. Officer Orlandos further testified: "As I was approaching Imperial, I had slowed my speed down between 40 and 50 miles per hour, applying my brakes. All traffic appeared to be yielding, until the last vehicle. As I just crossed the limit lines of the intersection, a vehicle in Number 3 westbound lane pulled out in front of our vehicle.... A collision occurred, and we lost total contact with the pursuit at that time."
*423 Officer Orlandos further testified that as he entered the intersection of Imperial Highway and Van Ness he was "pumping" his brakes. He was entering Imperial against a red light and his two sirens and flashing red lights were activated. He intended to cross Imperial and continue in pursuit on Van Ness if it was safe. When he observed the vehicle, driven by one Paris, pull out in front of him, Officer Orlandos hit his brakes, but was unable to avoid the collision "because of the close proximity of our vehicle and our speed." A passenger in the vehicle with which he collided died shortly thereafter as a result of the collision.[1]
Officer Orlandos travelled 4.4 miles in pursuit of the Dodge Charger. The chase came to a conclusion approximately one mile away from the intersection of Van Ness and Imperial Highway at Van Ness and Century, where the Dodge Charger abruptly braked, the driver lost control and the vehicle crashed into a red pickup truck that was parked on the street and then into a building.
Officer Richard McCarroll of the Hawthorne Police Department, assigned to traffic division motorcycles, testified that on May 15, 1974, he observed defendant's vehicle, a Dodge Charger, head westerly on El Segundo and turn northbound on Van Ness Avenue. Officer McCarroll had received information via police radio that "one of our police units was in pursuit of a Dodge Charger ... black over a light color." The Charger was accelerating rapidly; Officer McCarroll made a "U" turn and began to chase it, activating his red lights and siren, which remained activated throughout the chase.
In the course of the pursuit Officer McCarroll reached a speed of 100 miles per hour, yet continued to fall behind the Charger. Officer McCarroll had to slow to a speed of 30 to 35 miles per hour in order to avoid collision with another vehicle. At this point the Charger, approximately a quarter mile ahead of Officer McCarroll, was going over a slight hill. Officer McCarroll testified that he was not going to continue the pursuit any further. As he came to the top of the hill he "... observed the vehicle and a sheriff's unit with two deputies outside of their vehicle, and the Dodge Charger that crashed into a parked car and into a building at that location just south of Century on the west side of the street." The *424 Dodge Charger was the same vehicle he had been pursuing for almost two miles. Officer McCarroll observed defendant leaning over the trunk of the Dodge Charger; he was wearing a dark jacket and cap which appeared to Officer McCarroll to be the same clothing he had observed the driver of the Dodge Charger wearing.
On May 15, 1974, between 10:30 and 10:45 p.m., Deputy Louis Medina of the Los Angeles County Sheriffs' Department, assigned to special enforcement bureau patrol division, was in the vicinity of Century and Van Ness when he received a "radio broadcast of the Hawthorne Police Department pursuit." Deputy Medina drove to Van Ness and Century, turned southbound on Van Ness, at which time he observed a Dodge Charger travelling on Van Ness in excess of approximately 80 to 90 miles per hour. He further testified: "I had my red lights on in the radio car, and the Dodge Charger, all of a sudden, applied its brakes, stopped abruptly.... It braked abruptly and lost control, crashed into a red pickup truck that was on the west side of the street, parked. It struck the pickup truck and proceeded and struck a building, also, on the west side of the street, and came to a halt." Deputy Medina approached the Charger and found defendant slumped over the driver's wheel.
At the conclusion of the preliminary hearing the magistrate stated: "The record will show that we have discussed it off the record as to the legal points involved, and particularly as to proximate cause and foreseeability and the other complicated involved issues; however, I do feel that there is a strong suspicion that the crime of vehicle manslaughter has been committed, and there is the unlawful killing of a human being in the driving of a vehicle with gross negligence in an act inherently dangerous to human safety. Some of the speeds exhibited would indicate that the real question is whether this death, which is quite apparent  the evidence shows a collision between an officer pursuing the defendant to some extent, and whether this is all arguably not proximately resulting from the defendant's driving of the motor vehicle, I believe under the circumstances, from the evidence that I have heard, that I have heard a sufficient amount to hold him, and I do so hold that the crime of vehicle manslaughter has been committed, and that there is sufficient and probable cause to believe that Lawrence Lee Harris is guilty thereof. I am going to hold him to answer, and it does appear that the offense in the within Complaint mentioned, to wit, a violation of Section 192 subdivision 3(a) of the Penal Code, the same being the crime of manslaughter, vehicle manslaughter, has been committed, and there is *425 sufficient and probable cause to believe that the defendant, Lawrence Lee Harris, Jr., is guilty thereof."
The trial court granted defendant's motion to set aside the information. (Pen. Code, § 995.) The record of the hearing of the motion indicates that the court believed that the evidence set forth in the preliminary hearing transcript showed that Officer Orlandos had "relinquished the chase to ... some other officer that had taken up pursuit and was merely proceeding to back up that officer." In granting defense counsel's motion the trial court accepted defense counsel's argument that defendant's conduct was not the proximate cause of decedent's death.
The People contend that the trial court erred in granting defendant's motion made pursuant to Penal Code section 995.

Discussion
"Under Penal Code section 995, an information must be set aside if the defendant has been committed without `reasonable or probable cause.' Of course, the probable cause test is not identical with the test which controls a jury.... The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.] In other words, `Evidence that will justify a prosecution need not be sufficient to support a conviction.... An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]' [Citation.]" (Taylor v. Superior Court, 3 Cal.3d 578, 581-582 [91 Cal. Rptr. 275, 477 P.2d 131].)
"`It is axiomatic that in considering the propriety of a motion to set aside an information pursuant to section 995 of the Penal Code, the reviewing court may not substitute its judgment as to the weight of the evidence for that of the committing magistrate. And if there is some evidence in support of the information, the court will not inquire into the sufficiency thereof.' (Perry v. Superior Court, 57 Cal.2d 276, 283....) Moreover, `"[t]he credibility of witnesses at the preliminary examination ... is a question of fact within the province of the committing magistrate *426 to determine, and neither the superior court nor an appellate court may substitute its judgment as to such question for that of the magistrate."' (Jones v. Superior Court, 4 Cal.3d 660, 667....)" (People v. Block, 6 Cal.3d 239, 245 [103 Cal. Rptr. 281, 499 P.2d 961]; see also People v. Topp, 40 Cal. App.3d 372, 375 [114 Cal. Rptr. 856].)
It is therefore necessary to determine whether the evidence introduced at the preliminary hearing was sufficient to show that there was some rational ground for assuming the possibility that an offense had been committed and the accused was guilty of it.
The information charged defendant with the crime of vehicular manslaughter under Penal Code section 192, subdivision 3(a), which provides: "Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds: ... 3. In the driving of a vehicle  (a) In the commission of an unlawful act, not amounting to felony, with gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.... [¶] This section shall not be construed as making any homicide in the driving of a vehicle punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner." (1) This provision requires that the death, and not merely the accident itself, must be the proximate result of the commission of the unlawful act. (People v. Tracy, 199 Cal. App.2d 163, 169 [18 Cal. Rptr. 487].)
Although defendant's own unlawful act must be a proximate cause of the death, negligence on the part of the victim is not a defense to criminal liability. (Witkin, Cal. Crimes, §§ 347, 252; People v. Tracy, supra, 199 Cal. App.2d at p. 168.) Moreover, defendant's conduct can be a proximate cause of a death even where death results from collision with a third vehicle. (See People v. Kemp, 150 Cal. App.2d 654, 659 [310 P.2d 680];[2]Tischoff v. Wolfchief, 16 Cal. App.3d 703, 706-707 [94 Cal. Rptr. *427 299].) (2) The determination of whether defendant's unlawful act or acts were a proximate cause of the death is a question for resolution by the trier of fact (see People v. Lewis, 152 Cal. App.2d 824, 828-829 [313 P.2d 972]) and is determined according to the ordinary principles governing proximate causation. (Witkin, Cal. Crimes, supra, § 347; CALJIC No. 8.93.[3])
(3) A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is "dependent" and not a superseding cause, and will not relieve defendant of liability. (Witkin, Cal. Crimes, supra, §§ 80, 82, 83.) "(1) The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. (2) The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act." (Witkin, Cal. Crimes, supra, § 84.)
(4a) The evidence adduced at the preliminary hearing indicates that defendant initiated an unlawful and reckless course of speed on public streets and then continued it for 4.4 miles in an effort to evade law enforcement officers who, using emergency sirens and red lights, tried to apprehend him. Toward the end of the high speed chase a third law enforcement unit was involved in apprehending defendant. His speed at times exceeded 100 miles per hour. It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase.
The record indicates, contrary to defense counsel's assertion at the hearing on the section 995 motion, that there was at least a question of *428 fact as to whether Officer Orlandos was still in pursuit of defendant at the time of Officer Orlandos' collision which resulted in decedent's death. (5) (See fn. 4.) Under these circumstances the magistrate was justified in determining that the evidence was sufficient to show that the collision between Officer Orlandos' vehicle and that in which the decedent was riding was not an independent intervening cause of the death.[4] (Cf. Taylor v. Superior Court, supra, 3 Cal.3d at pp. 582-583.) (4b) We conclude that the evidence supported the magistrate's determination that reasonable and probable cause existed to charge defendant with vehicular manslaughter.
The order setting aside the information is reversed.
NOTES
[*]   Before Ford, P.J., Allport, J., and Potter. J.
[1]  It was stipulated that David Eugene Lawson, nine years of age, was a passenger in the "victim's vehicle," and was the decedent named in the complaint, and that Dr. Generoso P. Villano, medical examiner for the County of Los Angeles, performed an autopsy on the decedent and "ascribed the cause of his death to be from a contusion and edema of brain, due to or as a consequence of a blunt force trauma of the head, due to or as a consequence of other significant conditions being a contusion of the lungs."
[2]  In cases such as Kemp where two drivers are racing each other and one of the vehicles collides with a third vehicle, causing death, the culpability of the other driver is clear because each of the two drivers was inciting and encouraging the other to do an unlawful act. (People v. Kemp, supra, 150 Cal. App.2d 654, 659; see Annot., 24 A.L.R.3d 1286.) While in the case presently before this court it cannot be said that defendant and a pursuing officer were acting in concert, it is manifest that defendant could reasonably foresee that his conduct would provoke pursuit by an officer in the performance of his duty (see People v. Antick, 15 Cal.3d 79, 87-88 [123 Cal. Rptr. 475, 539 P.2d 43]) and that it was probable that his conduct of fleeing from the officer at great speeds along city streets would result in a collision, either of his vehicle or that of the officer, with a pedestrian or a third vehicle. Such conduct constitutes the commission of an unlawful act not amounting to felony with gross negligence within the meaning of Penal Code section 192, subdivision 3(a). Upon proof at trial that the death was a proximate result of such unlawful conduct, criminal culpability attaches. (See fn. 4, infra.)
[3]  CALJIC No. 8.93 states: "The proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred. [¶] There may be more than one proximate cause of death. When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of the death regardless of the extent to which each contributes to the death. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death."
[4]  Whether Officer Orlandos' conduct was so remote or disconnected and unforeseeable as to be a superseding cause, in which case defendant's conduct would not be the proximate cause of decedent's death, is a question of fact to be determined by the trier of fact beyond a reasonable doubt. Even if the trial court believed that the burden of proof could not be met and an acquittal would result, it was incumbent upon it to uphold the magistrate's determination if there was sufficient evidence to support it. (See People v. Tracy, supra, 199 Cal. App.2d at pp. 168-169.)


                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0532n.06

                                           No. 07-6147
                                                                                FILED
                                                                                Aug 03, 2009
                                                                                LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE WESTERN
                                       )                 DISTRICT OF TENNESSEE
LUIS ALBERTO VALLELLANES,              )
                                       )
                                                                 OPINION
      Defendant-Appellant.             )
_______________________________________)

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge.                     Defendant-Appellant Luis Alberto

Vallellanes (“Vallellanes”) appeals the eighty-four-month sentence imposed by the district court

following his plea of guilty to aiding and abetting the possession of 500 grams or more of cocaine

with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Vallellanes,

through counsel, argues that the within-Guidelines sentence imposed is substantively unreasonable.

Vallellanes also filed a pro se brief making two additional arguments: (1) the district court should

have applied pre-Sentencing Reform Act of 1984 law, which would have provided for parole and

additional good-time credits; and (2) his attorney provided ineffective assistance at sentencing by
failing to move for a downward departure based upon Vallellanes’s family obligations.1 For the

reasons explained below, we AFFIRM Vallellanes’s sentence.

                                       I. BACKGROUND

       On October 26, 2006, Vallellanes was arrested for his role in a drug transaction with a

confidential informant (“CI”) in Memphis, Tennessee. In October 2006, the CI contacted Juan E.

Reyna, Jr. (“Reyna”) to inquire about purchasing marijuana. Reyna said that he did not have any

marijuana but that he knew someone who had cocaine to sell. On October 25, 2006, the CI met with

Reyna and agreed to purchase one kilogram of cocaine for $20,000. The next day, the CI called

Reyna and arranged a meeting to complete the transaction at a parking lot off Sycamore View and

Summer Avenue in Memphis. Reyna arrived at the parking lot in a Ford Mustang driven by

Vallellanes, who Reyna introduced to the CI. Reyna verified that the CI had the money and told the

CI to wait in the parking lot until Reyna and Vallellanes got back. Twenty-five minutes later,

Vallellanes and Reyna returned, trailed by a Nissan pickup truck driven by Arcos Guerra-Guillerm

(“Guerra-Guillerm”). Reyna and Vallellanes exited the Mustang, and Reyna got into the passenger

side of the CI’s vehicle while Vallellanes got into Guerra-Guillerm’s Nissan truck. Guerra-Guillerm

gave Vallellanes a box, which Vallellanes then carried to the CI’s vehicle and handed to the CI.

Later tests revealed that the box contained approximately one kilogram of cocaine. Guerra-Guillerm

       1
          On April 10, 2008, Vallellanes filed a pro se motion requesting, among other things, to have
counsel withdraw and to have the files and transcripts from the district court transmitted to him. On
September 8, 2008, the clerk of this court entered an order denying Vallellanes’s motion but granting
Vallellanes leave to file a supplemental pro se brief. On October 9, 2008, Vallellanes filed a pro se
supplemental brief and a pro se motion to reconsider the September 8, 2008 order. We have
considered and now DENY Vallellanes’s motion for reconsideration of the September 8, 2008 order.
However, we address below the additional arguments raised by Vallellanes in his supplemental pro
se brief.

                                                  2
later told investigators that Vallellanes had hired him to bring the box containing the cocaine to the

parking lot.

       Vallellanes was charged with and pleaded guilty to one count of aiding and abetting the

possession of 500 grams or more of cocaine with the intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. Prior to sentencing, the government prepared a Presentence

Investigation Report (“PSR”) that calculated a Guidelines range of 84 to 105 months of

imprisonment based on a total offense level of 25 and a criminal history category of IV.

Vallellanes’s total offense level included a three-level downward adjustment for acceptance of

responsibility pursuant to Guideline § 3E1.1 and a two-level upward adjustment for a leadership role

pursuant to Guideline § 3B1.1(c). Additionally, the PSR reported that Vallellanes had a long history

of substance abuse; he began using marijuana at age 14 or 15 and cocaine at age 21 or 22 and

continued to use both frequently over the years. On August 8, 2007, Vallellanes filed a sentencing

memorandum objecting to the PSR’s recommendation of a two-level enhancement for his role in the

offense pursuant to Guideline § 3B1.1(c). The memorandum argued that Vallellanes was merely a

“conduit” for the cocaine transaction and that, although he exercised physical control over the

cocaine at one point, he did not “exert any authority/control over any of the other participants.”

Record on Appeal (“ROA”) at 15 (Vallellanes Sent. Mem. at 2). Noting that without the

enhancement Vallellanes’s Guidelines range would be 70 to 87 months, the memorandum asked the

district court to sentence Vallellanes to 70 months of imprisonment.

       At sentencing on September 14, 2007, Vallellanes’s counsel withdrew the objection to the

two-level enhancement for a leadership role under Guideline § 3B1.1(c). Conceding that the § 3B1.1

enhancement was permissible, Vallellanes’s counsel nonetheless continued to argue that Vallellanes

                                                  3
did not play a significant leadership role and should be sentenced to 70 months of imprisonment

based on the 70-87 month Guidelines range that would have applied absent the enhancement. The

government asked the district court to sentence Vallellanes within the 84-105 month Guidelines

range.

         After hearing from the parties, the district court announced a sentence of 84 months of

imprisonment—at the bottom of the Guidelines range—to be followed by four years of supervised

release. The district court explained that this was an extremely serious offense and that, although

Vallellanes was not a high-level leader or organizer, he did play a leadership role by hiring Guerra-

Guillerm to transport the cocaine to the meeting location. Additionally, the district court noted that

Vallellanes had a substantial criminal history, including drug offenses and a firearm-related offense,

and yet had received relatively little punishment for his prior offenses. The district court also

observed, however, that Vallellanes’s drug-abuse problem appeared to be “at the root of”

Vallellanes’s criminal conduct. Sent. Tr. at 12. In light of Vallellanes’s drug problem, the district

court decided to sentence Vallellanes at the bottom of the 84-105 months Guidelines range, noting

that “I would go to the upper end of the Guidelines on this record, except for the reasons I’ve stated,

in that I think drugs drive this thing.” Sent. Tr. at 13. Judgment was entered against Vallellanes on

September 19, 2007, and Vallellanes filed his notice of appeal the same day.

                                          II. ANALYSIS

A. Substantive Reasonableness

         Vallellanes’s principal argument on appeal is that his within-Guidelines sentence is

substantively unreasonable.      We review the sentence imposed by the district court for

reasonableness. United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008). Reasonableness review

                                                  4
has two components: procedural and substantive. See Gall v. United States, 552 U.S. 38, 128 S. Ct.

586, 597 (2007). First, this court must “ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Id. Second, we “then consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. In

undertaking this review, we “take into account the totality of the circumstances, including the extent

of any variance from the Guidelines range.” Id. “The fact that [we] might reasonably have

concluded that a different sentence was appropriate is insufficient to justify reversal of the district

court.” Id. “A sentence is substantively unreasonable if the district court select[s] the sentence

arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a)

factors or giv[es] an unreasonable amount of weight to any pertinent factor.” Walls, 546 F.3d at 736

(internal quotation marks omitted) (alterations in original). If the sentence imposed is within the

properly calculated Guidelines range, this circuit applies a rebuttable presumption of reasonableness.

United States v. Vonner, 516 F.3d 382, 389 (6th Cir.) (en banc), cert. denied, 129 S. Ct. 68 (2008).

       Vallellanes does not contend that his sentence is procedurally unreasonable. We therefore

turn to review of his sentence for substantive reasonableness. The PSR calculated Vallellanes’s

Guidelines range to be 84 to 105 months of imprisonment based upon a total offense level of 25 and

a criminal history category of IV. The district court adopted the PSR’s calculations and sentenced

Vallellanes to 84 months, at the bottom of the Guidelines range. Because Vallellanes’s sentence falls

within the Guidelines range, we apply a rebuttable presumption of reasonableness. Vonner, 516 F.3d

                                                  5
at 389. “Although this presumption is rebuttable, we cannot reverse a sentence simply because we

determine that a different sentence would be appropriate.” United States v. Higgins, 557 F.3d 381,

398 (6th Cir. 2009).

       Vallellanes argues that his sentence is substantively unreasonable for two reasons: (1) the

sentence overstates the seriousness of the offense because the district court imposed a two-level

enhancement under Guideline § 3B1.1(c) for Vallellanes’s leadership role; and (2) the district court

gave unreasonable weight to certain of the § 3553(a) factors.

       First, Vallellanes argues that the district court’s application of a two-level enhancement for

a leadership role under Guideline § 3B1.1(c) resulted in a substantively unreasonable sentence. The

PSR indicated that Vallellanes hired a man named Arcos Guerra-Guillerm to transport one kilogram

of cocaine to the location of the controlled buy with the confidential informant. The district court

found that although Vallellanes was not a high-level leader, he played a leadership role by hiring

Guerra-Guillerm to transport the drugs. Through counsel, Vallellanes concedes that the two-level

enhancement imposed by the district court for this leadership role was “arguably permissible under

the Guidelines,” and he does not appeal the enhancement itself. Vallellanes Br. at 12. Vallellanes

nonetheless contends that the enhancement “overstates the serious of [his] conduct as a

leader/organizer” and that his sentence, which is based in part on this enhancement, is therefore

substantively unreasonable. Id. This argument is unpersuasive. Vallellanes hired another individual

to transport cocaine to the location of a drug transaction, and Vallellanes concedes that it was

permissible for the district court to impose a two-level enhancement for this conduct. Vallellanes

points to no particular facts or circumstances indicating that the imposition of the § 3B1.1(c)

enhancement in this case resulted in an unreasonable sentence, nor does he cite any case law that

                                                 6
would support his argument. Instead, he makes only the unsupported and conclusory assertion that

the imposition of the enhancement somehow “overstates” the seriousness of his conduct. Because

Vallellanes fails to overcome the presumption of reasonableness, we conclude that this argument

lacks merit.

        Vallellanes also argues that his sentence is substantively unreasonable because the district

court gave undue weight to certain of the § 3553(a) factors. Vallellanes contends that the district

court “primarily emphasized the seriousness of the crime, the need to protect the public and the need

to deter others with a significant sentence,” while failing adequately to consider “the history and

characteristics of the defendant and the need for education, medical care or correctional treatment,

among others.” Vallellanes Br. at 12-13 (internal quotation marks omitted). The sentencing

transcript, however, reveals that the district court gave ample consideration to the § 3553(a) factors

that Vallellanes says were ignored—“the history and characteristics of the defendant” and the need

“to provide the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(1) & (a)(2)(D). After

noting that Vallellanes was “31 years old” and “not highly educated,” the district court considered

his criminal history in detail. Sent. Tr. at 10. The district court observed that Vallellanes had several

prior drug convictions as well as a conviction for wanton endangerment in which Vallellanes

“brandished a semi-automatic pistol in front of a group of people and then discharged it and fled

from the police.” Id. at 11. Despite this firearm-related conviction, the district court concluded that

Vallellanes was not “a violent person” and that his prior convictions were “consistent with this crime

insofar as they involve drug use and drug trafficking.” Id. Noting that Vallellanes had received little

                                                   7
time in prison despite his significant criminal record, the district court observed that it was “obvious

no one has ever punished Mr. Vallellanes.” Id. at 12.

        The district court also considered Vallellanes’s history of drug abuse and the need for

Vallellanes to receive drug treatment while in prison. The district court observed that “drugs are at

the root” of Vallellanes’s criminal history and that if “Vallellanes had control of his drug habit, he

would be ninety percent of the way to being a law[-]abiding citizen.” Id. at 12-13. Further, the

district court took Vallellanes’s drug-abuse problem into consideration in selecting a sentence at the

low end of the Guidelines range. In determining that an eighty-four-month sentence was appropriate,

the district court noted that “I would go to the upper end of the Guidelines on this record, except for

the reasons I’ve stated, in that I think drugs drive this thing.” Id. at 13. The district court also gave

ample consideration to the need for Vallellanes to receive education and treatment for his drug

problem in prison. The court noted that “[t]here is an opportunity for training and education for Mr.

Vallellanes while incarcerated. There is an even more important opportunity in this case for him to

receive drug treatment, which is badly needed on this record.” Id. at 12. Finally, the district court

recommended Vallellanes for the 500-hour drug treatment program, adding that “I think that’s the

key to the situation.” Id. at 14.

        In sum, the district court reviewed the pertinent § 3553(a) factors and did not give an

unreasonable amount of weight to some factors over others. Vallellanes contends that a lower

sentence would have been sufficient to comply with the purposes of § 3553(a); even if we agreed,

however, “we cannot reverse a sentence simply because we determine that a different sentence would

be appropriate.” Higgins, 557 F.3d at 398. Because Vallellanes has failed to meet his burden to

rebut the presumption of reasonableness, we conclude that the sentence is not substantively

                                                   8
unreasonable, and the district court did not abuse its discretion in sentencing Vallellanes to eighty-

four months of imprisonment.

B. Parole and Good-Time Credits

       In a supplemental pro se brief, Vallellanes argues that United States v. Booker, 543 U.S. 220

(2005), effectively required a return to the sentencing regime in place prior to the Sentencing Reform

Act of 1984 (“SRA”), Pub. L. No. 98-473, Title II, 98 Stat. 1987 (Oct. 12, 1984). Vallellanes argues

that his sentence should have been based on the old law, which provided for parole and additional

good-time credits (both of which were repealed by the SRA). See 18 U.S.C. § 4201 et seq. (parole)

(repealed 1984, effective Nov. 1, 1987 for offenses committed after that date); 18 U.S.C. § 4161

(good-time credits) (repealed 1984, effective Nov. 1, 1987 for offenses committed after that date).

Vallellanes fails to recognize, however, that although Booker severed and excised the mandatory

provisions of the Sentencing Guidelines, it also made clear that the “remainder of the [SRA]

‘function[s] independently.’” Booker, 543 U.S. at 259 (quoting Alaska Airlines, Inc. v. Brock, 480

U.S. 678, 684 (1987)); see also United States v. Moon, 513 F.3d 527, 541 (6th Cir.), cert. denied,

128 S. Ct. 2493 (2008). Booker invalidated just two provisions of the SRA: “the provision that

requires sentencing courts to impose a sentence within the applicable Guidelines range (in the

absence of circumstances that justify a departure), see 18 U.S.C. § 3553(b)(1) . . ., and the provision

that sets forth standards of review on appeal, including de novo review of departures from the

applicable Guidelines range, see § 3742(e).” Booker, 543 U.S. at 259. Although Vallellanes

contends that Booker’s excision of 18 U.S.C. § 3553(b)(1) somehow requires invalidation of the

SRA provisions repealing parole and good-time credits, this argument is contrary to Booker’s clear

directive that the “remainder of the [SRA] ‘function[s] independently.’” Id. (quoting Alaska

                                                  9
Airlines, 480 U.S. at 684). Because Booker did not invalidate the SRA’s repeal of the pre-SRA

parole and good-time-credit provisions, we conclude that Vallellanes’s argument lacks merit.

C. Ineffective Assistance of Counsel

       Finally, Vallellanes argues in his supplemental brief that his counsel at sentencing provided

ineffective assistance by failing to move for a downward departure based upon Vallellanes’s family

circumstances. He asserts that his ten-year-old daughter, who lives with her mother in Puerto Rico,

needs him at home and is emotionally impacted by his absence. We generally do not consider

ineffective-assistance-of-counsel claims on direct appeal because the record of trial counsel’s

allegedly deficient performance is not fully developed. United States v. DeJohn, 368 F.3d 533, 548

(6th Cir.), cert. denied, 543 U.S. 988 (2004); see also Massaro v. United States, 538 U.S. 500, 504

(2003) (“In light of the way our system has developed, in most cases a motion brought under § 2255

is preferable to direct appeal for deciding claims of ineffective assistance.”). We therefore decline

to consider Vallellanes’s claim of ineffective assistance of counsel in this direct appeal.

                                       III. CONCLUSION

       For the reasons stated above, we AFFIRM the sentence imposed by the district court.

                                                 10