OpenJurist

19 F3d 1433 Larck v. United States

19 F.3d 1433

Terry Arnold LARCK, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 93-6224.

United States Court of Appeals, Sixth Circuit.

March 21, 1994.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before: NELSON and SILER, Circuit Judges, and HACKETT, District Judge.*

ORDER

2

Terry Arnold Larck appeals a district court order denying his motion to vacate sentence filed pursuant to 28 U.S.C. Sec. 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

In 1991, Larck pleaded guilty to carrying and using a firearm in relation to a drug trafficking offense. The plea agreement provided that Larck would be sentenced to sixty months imprisonment. The district court complied with that dictate in sentencing Larck. The court also sentenced Larck to two years of supervised release and a $50.00 special assessment. This court affirmed Larck's conviction on direct appeal.

4

Larck then filed his present motion to vacate sentence, arguing that the district court's imposition of a term of supervised release violated the conditions of his plea agreement. The district court determined that Larck had waived his right to raise this claim and denied the motion. Larck has filed a timely appeal.

5

Upon review, we conclude that the district court properly denied Larck's motion to vacate sentence. Larck has waived review of this claim, because he has failed to establish cause and prejudice for not previously raising the issue. United States v. Frady, 456 U.S. 152, 167-69 (1982). Nonetheless, we note that the district court, before accepting Larck's guilty plea, clearly advised Larck that it could impose a period of supervised release.

6

Accordingly, we affirm the judgment. Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Barbara K. Hackett, U.S. District Judge for the Eastern District of Michigan, sitting by designation