U.S. v. Emanuel
Decision Date | 11 April 1989 |
Docket Number | No. 88-7122,88-7122 |
Citation | 869 F.2d 795 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray EMANUEL, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fourth Circuit |
Benson Barry Weintraub (Benedict P. Kuehne, Sonnett, Sale & Kuehne, P.A., Miami, Fla., on brief), for defendant-appellant.
John Michael Barton, Asst. U.S. Atty. (Vinton D. Lide, U.S. Atty., Columbia, S.C., on brief), for plaintiff-appellee.
Before SPROUSE and CHAPMAN, Circuit Judges, and MOTZ, District Judge for the District of Maryland, sitting by designation.
On June 20, 1985, Donald Ray Emanuel was sentenced to ten years' imprisonment and fined $50,000 upon his guilty plea to a charge of conspiracy to possess with intent to distribute cocaine. On August 13, 1987, Emanuel filed a motion to vacate sentence pursuant to 28 U.S.C. Section 2255 on the ground that the sentencing court failed to comply with Fed.R.Crim.P. 32(c)(3)(D) at the sentencing hearing. 1 The District Court, upon the recommendation of a United States Magistrate, denied the motion.
We find that Emanuel's Rule 32(c)(3)(D) claim is not properly before us in this Section 2255 proceeding. A violation of that rule can, of course, be challenged on direct appeal. See, e.g., United States v. Perrera, 842 F.2d 73 (4th Cir.1988); United States v. Hill, 766 F.2d 856 (4th Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 257, 88 L.Ed.2d 263 (1985). By failing to seek such review of his claim, Emanuel waived it, and he is therefore not being held "in violation of the ... laws of the United States." 28 U.S.C. Section 2255. 2
We have reviewed the record to determine if the sentencing court committed any error which could be deemed to be more than an alleged technical violation of Rule 32(c)(3)(D) and of constitutional dimension. No such error was committed. The only controverted facts which the District Court arguably did not treat in the manner required by Rule 32(c)(3)(D) related to matters as to which the Assistant United States Attorney proffered the government's witnesses would have testified at trial. Emanuel did not assert that this proffer was untrue, i.e. that the government's witnesses would have testified otherwise than as represented. To the contrary, Emanuel's counsel merely stated that as to certain details Emanuel contested the proffered testimony. However, Emanuel himself did not produce any evidence to show that his version of the disputed matters was accurate. Under these circumstances the sentencing court was under no constitutional duty to require the government to present witnesses to support its proffer, and there is nothing in the record to suggest that the sentence imposed by the court constituted an abuse of its discretion.
AFFIRMED.
1 The Rule provides in pertinent part as follows:
If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the...
To continue reading
Request your trial-
Boone v. U.S.
...in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see United States v. Emanuel, 869 F.2d 795, 796 (4th Cir.1989) (claim that sentencing court did not comply with Federal Rule of Criminal Procedure 32 was waived when not raised on ap......
-
Harvey v. United States, Civil Action 2:16-05665
... ... the right to contest the issue in Section 2255 proceedings ... See United States v. Emanuel, 869 F.2d 795 ... (4 th Cir. 1989) ... With ... respect to issues which are constitutional in nature, absent ... ...
-
Stroupe v. U.S., C.A. No. 2:03-894-PMD.
...because the claim is procedurally defaulted as a result of his failure to raise the claim on direct appeal. See United States v. Emanuel, 869 F.2d 795, 796 (4th Cir.1989) (holding that a Rule 32(c)(3)(D) claim was procedurally defaulted when not raised on direct appeal). The Court sees no r......
-
U.S. v. Pettiford, No. 09-4119 (4th Cir. 6/3/2010)
...from raising the[se] claim[s] on collateral review." Sanchez-Llamas v. Oregon, 548 U.S. 331, 351 (2006); see also United States v. Emanuel, 869 F.2d 795, 796 (4th Cir. 1989) (nonconstitutional issues are deemed waived in a § 2255 if they were not raised on direct appeal). The Supreme Court ......