OpenJurist

919 F2d 144 Beasecker v. United States Beasecker

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Michael Eugene BEASECKER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
Forest Leonard BEASECKER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 89-16007.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Nov. 21, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Michael Eugene Beasecker and Forest Leonard Beasecker, federal prisoners, appeal pro se the district court's denial of their 28 U.S.C. Sec. 2255 motions to vacate their sentences and special parole terms. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.1 We review de novo the district court's denial of a section 2255 motion, Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987), and we affirm.

3

The Beaseckers contend that it was error to impose consecutive sentences on the counts of distribution of methamphetamine and aiding and abetting in the distribution of methamphetamine. They also contend that it was error to impose separate sentences on the conspiracy to distribute and distribution charges because they constitute a single crime. Because the several counts to which the Beaseckers pled guilty did not occur "at the same time, in the same place, and with the involvement of the same participants," separate convictions and punishments for the violations was appropriate. See United States v. Palacios, 835 F.2d 230, 234-35 (9th Cir.1987). Moreover, a conspiracy to do an act and the completed substantive offense are distinct crimes for which separate sentences may be imposed. See United States v. Wylie, 625 F.2d 1371, 1381-82 (9th Cir.1980), cert. denied, 449 U.S. 1080 (1981).

4

The Beaseckers next contend that it was error for the Drug Enforcement Agents investigating their crimes to wait four years to arrest them, and were obligated to make an arrest when the first violations were committed. It appears that the Beaseckers are attempting to raise an entrapment defense, which should have been raised at trial. Entrapment is not an issue which may be raised to attack a judgment collaterally in a section 2255 motion. Matysek v. United States, 339 F.2d 389, 391 (9th Cir.1964), cert. denied, 381 U.S. 917 (1965).

5

Finally, the Beaseckers contend that the imposition of special parole terms was improper. The substantive offenses for which the trial court imposed special parole terms were committed in 1982 and 1983. Because these crimes were committed before the change in the law authorizing special parole terms, the trial court properly sentenced the Beaseckers for the violations of 21 U.S.C. Sec. 841(a)(1). See United States v. Garcia, 877 F.2d 23, 24 (9th Cir.1989).

6

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Forest Beasecker's request for oral argument is denied

**

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 Circuit R. 36-3

1

Appellee's contention that the Beaseckers' notices of appeal were not timely filed within the 30-day time limit is erroneous. The time for appeal from an order entered on a section 2255 motion is 60 days. Rule 11, Rules Governing Section 2255 Proceedings; Fed.R.App.P. 4(a)