JOHNSON, Circuit Judge:
Defendant Leslie Tooker, Jr., appeals from the district court's denial of his motion under Fed.R.Crim.P. 35(b) for reduction of sentence. Tooker received a sentence of two consecutive two-year terms of imprisonment and a $100,000 fine after he pleaded guilty to a two-count information charging that he unlawfully attempted to export arms in violation of 22 U.S.C. § 2778.
Tooker was arrested at Dallas-Fort Worth Regional Airport on February 15, 1983, when he attempted to board a flight to London, England, with twenty-four night vision devices, which, under 22 C.F.R. § 121.01 (1984), are classified as munitions of war. Tooker had failed to comply with the licensing provisions for exporting these munitions as required by 22 U.S.C. § 2778(b).
Tooker pleaded guilty to both counts as part of a plea bargain in exchange for the Government's promise not to bring additional charges of customs law violation relating to the same transactions. The district court accepted Tooker's plea and ordered a presentence investigation. A presentence investigation report was prepared by the United States Probation Office and made available to Tooker and his counsel prior to the sentencing proceeding. At sentencing, defense counsel took exception to the presentence report's evaluation of the severity of Tooker's offense. According to Tooker's counsel, the United States Probation Office erroneously assigned an offense severity factor of "8" — a classification usually assigned to offenses such as treason. The district court sentenced Tooker to the maximum term of imprisonment (two years on each count) on March 25, 1983.
With the assistance of counsel, Tooker thereafter filed a Rule 35 motion on June 9, 1983. The motion alleged that the court's assessment of the maximum term of imprisonment was influenced by bond having been set at $1,000,000 and the presentence report's classification of Tooker's offenses in Category 8. Tooker further contended that both the amount of bond and the severity category were based upon erroneous assumptions. Tooker also maintained that the presentence report contained erroneous information regarding his prior travels in that the report stated that he had traveled to Russia. Tooker asserted
On appeal, Tooker maintains that the district court erred in denying his Rule 35 motion and that the amended provisions of Rule 32(c)(3)(D) are applicable to the instant case.
II. Presentence Report
Tooker contends that his presentence report contained factually erroneous information concerning his travels. Tooker further asserts that the district court relied upon this allegedly erroneous information in imposing the maximum term of imprisonment.
Generally, this Court will not review the severity of a sentence imposed within statutory limits. United States v. Sparrow, 673 F.2d 862, 864 (5th Cir.1982). This Court will, however, "carefully scrutinize the judicial process by which punishment was imposed." Id. A Rule 35 motion is directed to the sound discretion of the district court and will be disturbed only for illegality or gross abuse of discretion. Id.; see also United States v. Robinson, 700 F.2d 205, 214 (5th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1003, 79 L.Ed.2d 235 (1984). Despite the district court's broad discretion, a defendant retains the right not to be sentenced on the basis of invalid premises. United States v. Espinoza, 481 F.2d 553, 555 (5th Cir.1973).
A defendant may not obtain relief, however, by merely alleging that his presentence report contained factual inaccuracies or inappropriate information. United States v. Garcia, 693 F.2d 412, 415 (5th Cir.1982); United States v. Cimino, 659 F.2d 535, 537 (5th Cir.1981). Indeed, a defendant must show that the information was materially inaccurate and that the judge relied on that information. Id.
In the instant case, Tooker points to the district court judge's statements at sentencing in support of his contention that the court relied upon erroneous factual information. The court stated:
Record Vol. 4 at 8-9 (emphasis added). Tooker suggests that the emphasized portions of the court's comments indicate that the court erroneously assumed that the arms were destined for Russia for use in "terror, mayhem, and other undesirable things." We find Tooker's argument untenable. Nothing in the court's statements evinces any reliance by the court on the presentence report's listing of Russia as one of the countries to which Tooker had traveled.
Tooker also maintains that his presentence report erroneously classified the severity of his offense in Category 8 and that the district court was influenced by that classification in imposing sentence. Tooker has demonstrated, however, neither that the classification by the parole office was a misclassification, nor that the court relied upon the classification in imposing sentence.
Tooker also points to the district court's statement concerning an "end use certificate" as evincing the court's reliance on inaccurate information. According to Tooker, an end use certificate had not yet become necessary because the agreement to export the munitions was still being negotiated. An end user's certificate could not be obtained, argues Tooker, until the deal had been consummated. This argument is specious. The issue of whether an end use certificate was the appropriate license for exporting munitions speaks more to the question of Tooker's guilt rather than to the propriety of his sentence. Tooker's guilt is not an issue now before this Court. Indeed, at the proceeding where Tooker entered his plea of guilty, Tooker readily admitted that he did not have the proper license to export munitions. Further, Tooker did not object (although given the opportunity to do so by the court) to the Government's factual summary which recited that an end use certificate was the appropriate license that would permit shipment of the munitions from the United States. The presentence report merely repeated the factual summary which had been put in the record at the plea proceeding.
In sum, Tooker has the burden of demonstrating that his presentence report
III. Rule 32(c)(3)(D)
The amended rule became effective on August 1, 1983, over four months after Tooker's conviction and sentencing. The Supreme Court's implementation order provides that the amendments "shall govern all criminal proceedings thereafter commenced and, insofar as just and practicable, in proceedings then pending." Amendments to the Federal Rules of Criminal Procedure, Fed.R.Crim.P. 32(c)(3)(D), 103 S.Ct. 81 (advance sheet, yellow pages, June 15, 1983). Tooker argues that the amended rule is applicable to the instant case because his Rule 35(b) motion was pending on the effective date of the amendments and urges us to remand his case to the district court for compliance with the rule. The Government counters that the thrust of Rule 32 pertains to sentencing proceedings, and not to motions under Rule 35. Thus, the argument follows, "pending" refers to cases pending for sentencing, not pending Rule 35 motions.
The Advisory Committee Notes to the proposed Rule 35(c)(3)(D) indicate that the purposes of the amendments are to ensure that a record is made of the resolution of controverted matters and to make certain that the resolution of those controversies comes to the attention of the agencies who utilize the presentence report. With these purposes in mind, and assuming arguendo that Tooker's sentencing proceedings were pending on August 1, 1983, we fail to see how it is either just or practicable that the amended rule apply here. Indeed, according to Tooker's counsel at oral argument, the allegedly erroneous factual information in the presentence report was brought to the attention of the probation office and the severity category of Tooker's offense has been reclassified. See n. 5 supra.
Tooker has alleged no facts to show that the sentence he received was a gross abuse of the district court's discretion. Accordingly, the judgment of the district court denying Tooker's motion for reduction of sentence is