Grant v. U.S., 95-1174

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: ALAN E. NORRIS
• Citation: 72 F.3d 503
• Parties: Diana Lynn GRANT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Docket Number: No. 95-1174,95-1174
• Decision Date: 21 February 1996

Page 503

72 F.3d 503 Diana Lynn GRANT, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee. No. 95-1174. United States Court of Appeals,
Sixth Circuit. Argued Sept. 21, 1995.
Decided Jan. 4, 1996.
Rehearing and Suggestion
for Rehearing En Banc
Denied Feb. 21, 1996.

Page 504

Andrew N. Wise (argued and briefed), Federal Public Defenders Office, Detroit, MI, for Petitioner-Appellant.

Robert Haviland, Asst. U.S. Attorney (argued and briefed), Flint, MI, for Respondent-Appellee.

Before: NORRIS, SUHRHEINRICH, and GIBSON, Circuit Judges. ^*

ALAN E. NORRIS, Circuit Judge.

Petitioner Diana Lynn Grant appeals the district court's denial of her request for collateral relief based upon an allegedly erroneous application of the United States Sentencing Guidelines. Because we deem her argument to be waived, we affirm the judgment of the district court.

Page 505

I.

In 1989, a federal jury in the Eastern District of Michigan found petitioner guilty of conspiracy to distribute cocaine. A presentence report prepared by the probation department found petitioner accountable for the distribution of at least fifty kilograms of cocaine by the members of the conspiracy. At her sentencing hearing, petitioner did not challenge the report's finding; and the district court accepted the fifty-kilogram figure. In early 1990, the district court sentenced petitioner to incarceration for 121 months, the minimum sentence authorized by the sentencing guidelines.

On direct appeal, petitioner challenged her conviction but asserted no sentencing errors. This court affirmed the conviction in an unpublished opinion. United States v. Grant, 936 F.2d 573 (table), No. 90-1159, 1991 WL 110390 (6th Cir.) (per curiam), cert. denied, 502 U.S. 897, 112 S.Ct. 270, 116 L.Ed.2d 223 (1991).

The commentary to U.S.S.G. Sec. 1B1.3 in effect at the time of petitioner's sentencing, as well as her direct appeal, provided the following guidance to the district court as to the determination of "relevant conduct" for a member of a conspiracy: "[T]he conduct for which the defendant 'would be otherwise accountable' also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant." U.S.S.G. Sec. 1B1.3, comment. (n. 1) (1990). In 1992, amendment 439 to the guidelines substantially revised the wording of Sec. 1B1.3 and its commentary. Specifically, a revised application note states that "[i]n order to determine the defendant's accountability for the conduct of others ..., the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake." U.S.S.G. Sec. 1B1.3, comment. (n. 2) (1992).

In 1993, petitioner brought this action seeking relief under 28 U.S.C. Sec. 2255. She alleges that her sentence should be vacated because the district court failed to make an explicit factual finding as to the scope of the criminal activity petitioner had agreed to undertake, thereby violating U.S.S.G. Sec. 1B1.3. Petitioner argues that, had the district court made the requisite finding, a lesser amount of cocaine would have been attributed to her, resulting in a lower guideline range for sentencing purposes.

The district court denied petitioner the Sec. 2255 relief in February of 1995 because (1) petitioner waived the claimed error by not raising it in either the district court or in her direct appeal; and (2) the district court's use of the fifty kilogram figure was not clearly erroneous, as the trial record plainly supported the attribution...