U.S. v. Ward, 94-3391

• Decision Date: 23 May 1995
• Docket Number: No. 94-3391,94-3391
• Citation: 55 F.3d 412
• Parties: UNITED STATES of America, Appellee, v. Michael Ray WARD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 412

55 F.3d 412

UNITED STATES of America, Appellee, v. Michael Ray WARD, Appellant.

No. 94-3391.

United States Court of Appeals,

Eighth Circuit.

Submitted May 16, 1995.

Decided May 23, 1995.

Denise D. Reilly, Minneapolis, MN, argued (David L. Lillehaug, on the brief), for appellee.

Deborah Kay Ellis, St. Paul, MN, for appellant.

Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON, Senior Circuit Judge, and FAGG, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

Michael Ward pleaded guilty in 1991 to manufacturing methamphetamine, in violation of 21 U.S.C. Sec. 841, and conspiring to manufacture methamphetamine, in violation of 21 U.S.C. Sec. 846. Ward received a sentence of nine years and seven months in prison. The sentence was based on a finding that he was responsible for 989 grams of D-methamphetamine. In this collateral attack on his sentence under 28 U.S.C. Sec. 2255, Ward now claims that the drug in fact was L-methamphetamine, a substance that would carry a lesser penalty. He did not make this argument at the time of sentencing or on direct appeal from his conviction. The District Court ¹ held that Ward's contention is procedurally barred. We agree and affirm.

The Presentence Report in Ward's case recommended a finding that Ward be held responsible for 989 grams of D-methamphetamine, a quantity of drugs that would produce a base offense level of 30. Both Ward and the United States objected to the Report. The government argued that the proper quantity was 1.794 kilograms, and the proper base offense level 32. Ward argued that the proper quantity was 144.7 grams, resulting in an offense level of 26 and a sentencing range of 70 to 87 months for a person with Ward's criminal history (category II). In the alternative, Ward's fallback position was that the Presentence Report was correct, and the proper quantity 989 grams. He argued that his offense level should then be 28, with a sentencing range of 87 to 108 months, claiming a two-level downward adjustment for acceptance of responsibility. The District Court, after considering both positions, found that the quantity suggested in the Presentence Report was correct, thus rejecting the position of the United States and agreeing with Ward's alternative position. A sentence of 115 months, which is within the Guideline range for a person with a base offense level of 30 and criminal-history category II, was imposed.

Ward now argues that the substance he was manufacturing was L-methamphetamine, not D-methamphetamine. This makes a big difference. Under the Guidelines as they existed at the time of the commission of the crime, as well as at the time of sentencing, a gram of D-methamphetamine was worth, for sentencing purposes, 25 grams of L-methamphetamine. If the substance involved in this case were L-methamphetamine, the base offense level would be 18 instead of 30, and Ward would, at least presumptively, have received a much shorter sentence.

The difficulty, as the District Court held, is that this argument was never made until the commencement of the present collateral attack. The point was not made at the time of sentencing, neither was it made by Ward on direct appeal from his sentence. Collateral proceedings under 28 U.S.C. Sec. 2255 cannot be made to do service for an appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). To the fullest extent possible, all arguments, even constitutional or jurisdictional ones (and Ward's present argument hardly reaches either of these categories), should be made at trial and on direct appeal. See id.; Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.1993) (per curiam); Reid v. United States, 976 F.2d 446, 447 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1351, 122 L.Ed.2d 732 (...