98 F.3d 1155 (9th Cir. 1996), 95-36031, United States v. McMullen

Docket Nº:95-36031.
Citation:98 F.3d 1155
Party Name:D.A.R. 12,881 UNITED STATES of America, Plaintiff-Appellee, v. Frank Charles McMULLEN, Jr., Defendant-Appellant.
Case Date:October 23, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1155

98 F.3d 1155 (9th Cir. 1996)

D.A.R. 12,881

UNITED STATES of America, Plaintiff-Appellee,


Frank Charles McMULLEN, Jr., Defendant-Appellant.

No. 95-36031.

United States Court of Appeals, Ninth Circuit

October 23, 1996

Submitted Sept. 16, 1996.[*]

Page 1156

Frank C. McMullen, Sheridan, OR, in pro. per. for defendant-appellant.

John F. Deits, Assistant United States Attorney, Portland, OR, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon, Owen M. Panner, Chief Judge, Presiding. D.C. Nos. CR-91-00062-OMP, CV-95-00761-OMP.

Before: ALDISERT, [**] PREGERSON and T.G. NELSON, Circuit Judges.

ALDISERT, Circuit Judge:

This appeal by Frank Charles McMullen from the denial of his 28 U.S.C. § 2255 motion to vacate his sentence requires us to decide if defendants convicted of possession of methamphetamine with intent to distribute waive their right to challenge on collateral review the sentencing court's finding of the type of methamphetamine involved in their offense when they fail to assert that challenge at sentencing or on direct appeal. Appellant argues that the probation officer who prepared the presentence report improperly assumed that McMullen possessed D-methamphetamine rather than L-methamphetamine, and that the sentencing court erred in relying on that assumption. McMullen also argues that he was denied effective assistance of counsel when his attorney failed to raise the issue of L- versus D-methamphetamine at sentencing. Further, he contends that the district court abused its discretion in denying his motions for discovery and an evidentiary hearing.

The district court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. The appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure. We affirm.


McMullen does not contest the basic facts underlying his conviction. Rather, his § 2255 motion attacks his sentence on the basis of the difference between L-methamphetamine (the isomer levo-methamphetamine) and D-methamphetamine (the isomer dextro-methamphetamine). L-methamphetamine produces little or no effect when ingested, whereas D-methamphetamine produces an intense high. The Sentencing Guidelines in effect during McMullen's sentencing treated L-methamphetamine much less severely than D-methamphetamine. See U.S.S.G. § 2D1.1, comment. (n. 10) (Nov. 1, 1990). The Guidelines have since been amended to eliminate any distinction in sentencing between L- and D-methamphetamine. See U.S.S.G. § 2D1.1 (Nov. 1, 1995).

McMullen did not raise the issue of methamphetamine type at any time during his sentencing proceeding. The probation officer who drafted McMullen's presentence report determined the applicable Sentencing Guidelines range by assuming that D-methamphetamine was involved. The parties and the district court proceeded through sentencing on the basis of that assumption, and the court sentenced McMullen to 151 months imprisonment. He did not appeal, but the court later reduced McMullen's sentence to 121 months after McMullen brought a § 2255 motion challenging a clerical error in the original judgments.

Appellant first raised the issue of methamphetamine type in his second § 2255 motion, four years after sentencing. He argued that the sentencing court erred in...

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