United States v. Julio Mena

60 F.3d 835, 1995 U.S. App. LEXIS 25546, 1995 WL 394361

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 30, 1995
• Docket: 93-16912
• Status: Published

Opinion

60 F.3d 835
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Julio MENA, Defendant-Appellant.

No. 93-16912.

United States Court of Appeals, Ninth Circuit.

Submitted June 26, 1995.*
Decided June 30, 1995.

Before: O'SCANNLAIN, LEAVY and HAWKINS, Circuit Judges.

MEMORANDUM**

Julio Mena, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion. We have jurisdiction under 28 U.S.C. Sec. 2255, and we affirm.

The district court properly declined to consider the merits of Mena's contentions regarding his entitlement to a downward departure from his Guidelines sentence for providing substantial assistance to the government pursuant to U.S.S.G. Sec. 5K1.1. We rejected these contentions in Mena's direct appeal. See United States v. Mena, 925 F.2d 354 (9th Cir. 1991). A contention previously rejected on direct appeal cannot be the basis of a Sec. 2255 motion absent an intervening change in the law or manifest injustice, neither of which are present here. See Walter v. United States, 969 F.2d 814, 816-17 (9th Cir. 1992); United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985).

Mena has waived his claim that the district court improperly refused to grant him a downward departure from his sentence calculated under the career offender guidelines because he failed to raise this issue in his direct appeal. See United States v. Schlesinger, 49 F.2d 483, 485 (9th Cir. 1994).

Finally, we decline to consider Mena's claim that he was denied the effective assistance of counsel because his brief contains no argument on this issue. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3