UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6869
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALBERT CHARLES BURGESS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:09-cr-00017-GCM-DLH-1)
Submitted: August 30, 2012 Decided: September 10, 2012
Before GREGORY, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Albert Charles Burgess, Jr., Appellant Pro Se. Thomas Richard
Ascik, Assistant United States Attorney, Asheville, North
Carolina; Cortney Escaravage, Kimlani M. Ford, Edward R. Ryan,
Assistant United States Attorneys, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Charles Burgess, Jr., appeals from the district
court’s orders denying his motions to correct or amend sentence,
to preserve evidence, for a new trial, and to cease collection
of restitution, and the motion filed by Burgess’ standby counsel
seeking authorization for additional fees. We affirm.
On appeal, we confine our review to the issues raised
in the appellant’s brief. See 4th Cir. R. 34(b). Because
Burgess’ informal brief does not challenge the district court’s
order denying the motion by standby counsel seeking
authorization for additional fees, Burgess has waived appellate
review of that order.
We find no abuse of discretion in the district court’s
orders denying Burgess’ motions under Fed. R. Crim. P. 35(a) to
correct or amend sentence. United States v. McQuiston, 307 F.3d
687, 689 (8th Cir. 2002) (stating standard of review). It is
well established that a motion brought under Rule 35(a) is
limited to the correction of an illegal sentence. Hill v.
United States, 368 U.S. 424, 430 (1962). A sentence is illegal
if the punishment imposed was in excess of that prescribed by
the relevant statutes, multiple terms were imposed for the same
offense, or the terms of the sentence itself were legally or
constitutionally invalid in any other respect. Id. This Court
has interpreted Hill’s third basis for a Rule 35(a) motion —
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sentences that are legally or constitutionally invalid in any
other respect — to implicate only sentences that are “ambiguous
or internally contradictory.” United States v. Pavlico, 961
F.2d 440, 443 (4th Cir. 1992). Burgess’ allegations do not meet
any of these requirements.
We also find no error in the district court’s denial
of Burgess’ motion to preserve evidence. The Federal Rules of
Criminal Procedure do not provide for motions to preserve
evidence in the possession of non-parties for use in support of
a criminal defendant’s potential collateral claim of actual
innocence. Burgess did not identify any constitutional,
statutory, or other authority providing for such a motion or
relief in the form of an evidentiary preservation order and, in
any event, he did not establish that any irreparable harm would
result from the failure to issue an evidentiary preservation
order.
We further find no abuse of discretion in the district
court’s denial of Burgess’ motion for a new trial predicated on
the Government’s alleged violation of Brady v. Maryland,
373 U.S. 83 (1963), because the allegedly undisclosed evidence
on which Burgess relies is not material and was not withheld in
violation of Brady. See United States v. Stokes, 261 F.3d 496,
502 (4th Cir. 2001) (stating that a defendant may secure a new
trial on the ground that the prosecution contravened its
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obligations under Brady by showing that (1) the undisclosed
evidence was favorable to him; (2) the evidence was material;
and (3) the prosecution possessed the evidence, yet failed to
disclose it).
Finally, because this Court recently vacated the
district court’s previously-imposed order of restitution and
remanded for further proceedings, United States v. Burgess,
684 F.3d 445, 448, 460 (4th Cir. 2012), Burgess’ motion to cease
collection of restitution is now moot. See Incumaa v. Ozmint,
507 F.3d 281, 286 (4th Cir. 2007) (setting forth the principles
of appellate mootness).
Accordingly, we affirm the district court’s orders.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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