United States v. Thomas A. Rudy

60 F.3d 835, 1995 U.S. App. LEXIS 25521, 1995 WL 398900

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 7, 1995
• Docket: 94-36120
• 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NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Thomas A. RUDY, Defendant-Appellant.

No. 94-36120.

United States Court of Appeals, Ninth Circuit.

Submitted July 6, 1995.*
Decided July 7, 1995.

Before: FLETCHER, KOZINSKI and THOMPSON, Circuit Judges.

MEMORANDUM**

Thomas A. Rudy appeals the district court's denial of his 28 U.S.C. Sec. 2255 motion to vacate, correct, or set aside his sentence. Rudy was sentenced to 63 months imprisonment and was fined $60,200 after his guilty plea to conspiracy to distribute a controlled substance in violation of 21 U.S.C. Sec. 846. Rudy contends that (1) the Sentencing Commission lacked statutory authority to promulgate U.S.S.G. Sec. 5E1.2(i),1 and (2) imposition of the cost-of-incarceration fine violated his due process rights. We have jurisdiction under 28 U.S.C. Sec. 2255 and review de novo a district court's denial of a Sec. 2255 motion. See Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991).

For the reasons stated in United States v. Zakhor, No. 94-50439, slip op. 7269 (9th Cir. June 22, 1995), we affirm.

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

1 The 1988 version of the Sentencing Guidelines was used at Rudy's sentencing. In the 1988 version, "Fine for Individual Defendants" was numbered Sec. 5E4.2, which authorizes the district court to "impose an additional fine amount that is at least sufficient to pay the costs to the government of any imprisonment, probation, or supervised release ordered." U.S.S.G. Sec. 5E4.2(i) (1988)