OpenJurist

919 F2d 738 Mabry v. United States

919 F.2d 738

Terry Lee MABRY, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 90-5270.

United States Court of Appeals, Sixth Circuit.

Dec. 6, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before MERRITT, Chief Judge, and NATHANIEL R. JONES and WELLFORD, Circuit Judges.

ORDER

1

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Terry Lee Mabry filed a motion to vacate sentence under 28 U.S.C. Sec. 2255 in which he contends that his 1989 sentence for a firearms conviction under 18 U.S.C. Sec. 922(a)(6) was improperly calculated. The matter was referred to a magistrate who recommended that the motion be denied. The district court adopted the recommendation, noting that Mabry had not filed objections, and this appeal followed. The parties have briefed the issues, Mabry proceeding without counsel.

3

Upon consideration, we find ourselves in agreement with the district court's judgment albeit for different reasons. See Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir.1985) (per curiam). We will assume that Mabry's failure to file objections to the magistrate's report and his failure to raise his claims on direct appeal are excusable and we will proceed to the substance of his motion.

4

The issues raised in the motion to vacate are without merit. Mabry contends that the district court should not have considered uncharged conduct (marijuana cultivation) in determining his base offense level. Sentencing Guideline Sec. 1B1.3(a)(2) requires consideration of uncharged conduct. Mabry's second claim, that the district court erred in determining his criminal history category, was not raised at sentencing by Mabry or his counsel and resultantly will not be considered on this appeal. Chandler v. Jones, 813 F.2d 773, 777 (6th Cir.1987). This motion is meritless.

5

The district court's judgment is affirmed also for the reasons set forth by Magistrate Cook in his recommendation of December 13, 1989. See Rule 9(b0(5), Rules of the Sixth Circuit.