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982 F2d 526 Mosse v. United States

982 F.2d 526

Mark Elliot MOSSE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 92-2008.

United States Court of Appeals,
Eighth Circuit.

Submitted: December 7, 1992.
Filed: December 28, 1992.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before MAGILL, LOKEN, and HANSEN, Circuit Judges.

PER CURIAM.

1

Mark E. Mosse, a federal prisoner, appeals from the district court's1 order denying his motion to vacate his sentence under 28 U.S.C. § 2255. We affirm.

2

Mosse pleaded guilty to a charge of growing more than 1000 marijuana plants in violation of 21 U.S.C. § 841(a)(1). In the plea agreement, Mosse agreed that the applicable base offense level was 32 under U.S.S.G. § 2D1.1 and acknowledged that the charge carried a mandatory minimum sentence of ten years imprisonment under 21 U.S.C. § 841(b)(1)(A)(vii). The government agreed not to seek enhancement of his sentence based on his prior convictions. The district court sentenced Mosse to 120 months imprisonment. Mosse did not appeal that sentence.

3

In January 1992, Mosse filed this motion to reconsider his sentence under 28 U.S.C. § 2255. He argues that his due process rights were violated by an arbitrary and capricious referral of his case from state to federal prosecution; that the equation of one marijuana plant to one kilogram of marijuana for sentencing purposes violated his due process and equal protection rights; and that his trial counsel provided ineffective assistance by failing to raise these issues on direct appeal.

4

Mosse's guilty plea waived his right to challenge the government's decision to bring federal charges. See Smith v. United States, 876 F.2d 655, 657 (8th Cir.), cert. denied, 493 U.S. 869 (1989). In the plea agreement, Mosse waived his right to challenge the mandatory minimum sentence by acknowledging that it applied to his offense and accepting the benefit of that agreement. See United States v. Durham, 963 F.2d 185, 187 (8th Cir.), cert. denied, 61 U.S.L.W. 3418 (1992). Since Mosse waived these challenges, his claim of ineffective assistance of counsel must fail because counsel's failure to appeal his sentence on these grounds could not have been prejudicial. See Strickland v. Washington, 466 U.S. 668, 687.

5

Accordingly, the judgment of the district court is affirmed.

1

The HONORABLE DONALD D. ALSOP, then Chief Judge of the United States District Court for the District of Minnesota, now a Senior District Judge