107 F3d 874 Velasco v. United States

107 F.3d 874

Julio VELASCO, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

No. 95-3833.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 6, 1997.*
Decided Feb. 6, 1997.

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Before POSNER, Chief Judge, and KANNE, and DIANE P. WOOD, Circuit Judges.


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Julio Velasco, a federal prisoner acting pro se, appeals the denial of his motion to set aside his sentence. 28 U.S.C. § 2255. Velasco pleaded guilty to conspiracy to distribute more than five kilograms of cocaine, 21 U.S.C. § 841, and received the twenty-year mandatory minimum sentence. He now contends that his guilty plea was invalid because he did not understand the full consequences of the plea, and that he received ineffective assistance of counsel both at the plea hearing and at sentencing. The district court determined that those claims were procedurally barred and, even if they were not, lacked merit. We agree, and affirm for the reasons stated by the district court.


On appeal, Velasco adds a claim that the district court wrongly determined that he was a career offender within the meaning of the Sentencing Guidelines. Velasco waived this contention by failing to raise it before the district court. Ortiz v. Butler, 94 F.3d 1121, 1126 (7th Cir.1996). And in any event, we considered the same claim during Velasco's direct appeal, and found it baseless. United States v. Mojica, 984 F.2d 1426, 1431, 1453 (7th Cir.1993).1




After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Therefore, the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f)


Velasco claims that the Mojica court remanded his case for resentencing without considering his arguments. That is a misrepresentation: Velasco's sentence was affirmed. The case was remanded so that two of his co-conspirators could be resentenced. Mojica, 984 F.2d at 1453. And the reason his sentencing claim was not discussed at length is because it was found "plainly without merit." Id