OpenJurist

923 F2d 861 Belcher v. United States

923 F.2d 861

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Blair K. BELCHER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 90-15176.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1991.*
Decided Jan. 15, 1991.

Before SNEED, HUG and NOONAN, Circuit Judges.

1

MEMORANDUM**

2

Blair K. Belcher, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion to vacate his sentence. Belcher contends his sentence must be set aside because after his sentencing, the United States Parole Commission changed its method for calculating offense severity, thereby increasing the time he must serve before he is released. We review de novo a district court's denial of a section 2255 motion, United States v. Quan, 789 F.2d 711, 713 (9th Cir.1986), and review sentencing within statutory guidelines for an abuse of discretion, Jones v. United States, 783 F.2d 1477, 1479 (9th Cir.1986).1 We affirm.

3

According to Belcher, the parole projection provided to the district court at his sentencing on January 12, 1988 estimated that he would serve two to three years before being released on parole. On December 28, 1988, the Parole Commission advised Belcher that his guideline range indicated that he would have to serve between 48 and 62 months before he would be released on parole. Belcher contends that the Parole Commission changed its guidelines, and argues that the change invalidates his sentence because (1) it results in a prison term longer than the sentencing judge anticipated, and (2) it violates the ex post facto clause of the United States Constitution.

4

The district court properly denied Belcher's section 2255 motion. The Parole Commission has discretion to modify its offense severity factors in order to determine a parole date, Vermouth v. Corrothers, 827 F.2d 599, 602 (9th Cir.1987), and post-sentencing changes, which result in prison terms longer than the sentencing judge anticipated, do not provide a basis for a collateral attack on a sentence under section 2255. United States v. Addonizio, 442 U.S. 178, 190 (1979); see Jones, 783 F.2d at 1483. Similarly, a sentencing court's reliance on a probation officer's estimate of parole eligibility, which later turns out to be inaccurate, is not "misinformation of constitutional magnitude" cognizable under section 2255. Finally, because the Parole Commission retains discretion to change its offense severity factors and parole dates, its regulations are not deemed laws within the meaning of the ex post facto clause. Vermouth, 827 F.2d at 604.2

5

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition 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

Belcher was not sentenced under the Sentencing Guidelines because the offense committed occurred before November 1, 1987, the date the guidelines became effective

2

For the first time on appeal, Belcher asserts (1) he was rendered ineffective assistance of counsel because his attorney filed a section 2255 motion rather than a 28 U.S.C. Sec. 2241 habeas petition and (2) the district court should have sentenced him under 18 U.S.C. Sec. 4205(b). Because these issues were not presented to the district court, we decline to consider them. Willard v. California, 812 F.2d 461, 465 (9th Cir.1987)