United States v. Sergio Montoya

67 F.3d 310, 1995 U.S. App. LEXIS 33050, 1995 WL 565993

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 25, 1995
• Docket: 94-16803
• Status: Unpublished

Opinion

67 F.3d 310

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 94-16803.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 18, 1995.*
Decided Sept. 25, 1995.

Before: BROWNING, GOODWIN, and O'SCANNLAIN, Circuit Judges.

MEMORANDUM**

Sergio Montoya appeals the district court's denial of his petition for relief under 28 U.S.C. Sec. 2255. Montoya contends that it is unclear from the record whether the district court used its discretion when it denied his motion for a downward departure. He also renews the claim rejected on direct appeal that he was sentenced on the basis of unreliable information, and should have received an evidentiary hearing. We have jurisdiction under 28 U.S.C. Sec. 2255 and we affirm.

We review de novo the district court's denial of a petition for relief under 28 U.S.C. Sec. 2255. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991).

We decline to consider Montoya's claim that the district court misapprehended its discretion to depart as there is no basis here for allowing collateral attack "to do service for an appeal." See United States v. Schlesinger, 38 F.3d 485, 487 (9th Cir.1994). Although ordinarily, we decline to review issues decided adversely to a defendant on direct appeal, see United States v. Redd, 759 F.2d 699, 701 (9th Cir.1985), here, the district court granted discretionary review of Montoya's sentencing claims, see Walter v. United States, 969 F.2d 814, 816 (9th Cir.1992). We affirm for the second time the district court's conclusion that Montoya was properly sentenced and fairly denied an evidentiary hearing. Grady, 929 F.2d at 470.

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