956 F2d 270 Tye v. United States

956 F.2d 270

John Miles TYE, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

No. 91-3637.

United States Court of Appeals, Sixth Circuit.

Feb. 25, 1992.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

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Before RYAN and SUHRHEINRICH, Circuit Judges, and CHURCHILL, Senior District Judge.*



John Miles Tye appeals a district court order denying his motion for modification of sentence filed pursuant to 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). Counsel for both parties have waived oral argument.


In 1988, a jury convicted Tye of one count of unlawfully possessing with intent to distribute in excess of 500 grams of cocaine and conspiracy to unlawfully distribute cocaine. As Tye had previously been convicted of an Ohio drug trafficking felony, he was subject to an enhanced penalty pursuant to 18 U.S.C. § 851. The trial court sentenced Tye to the minimum mandatory sentence, one-hundred and twenty months imprisonment. On direct appeal, this court affirmed Tye's conviction.


Tye then filed the present motion to modify sentence pursuant to 28 U.S.C. § 2255. In his motion, Tye alleged that: (1) his counsel was ineffective for failing to inform Tye of his possible minimum sentence; (2) the trial court violated Fed.R.Crim.P. 32 by failing to make findings of fact regarding allegedly controverted matters in the pre-sentence investigation report (PSI); (3) his counsel was ineffective for failing to bring alleged inaccuracies in the PSI to the trial court's attention; and (4) Tye's right to remain silent was violated when he was denied a two point level reduction in his sentencing guideline score. The district court determined that Tye's claims were without merit and denied the motion. Tye has filed a timely appeal.


Upon review, we affirm the district court's judgment. Tye has failed to establish the denial of a substantive right or defects in the proceedings which are inconsistent with the rudimentary demands of fair procedure. See United States v. Timmreck, 441 U.S. 780, 783 (1979).


Accordingly, we affirm the judgment for the reasons set forth in the district court's order filed on June 26, 1991. Rule 9(b)(3), Rules of the Sixth Circuit.


The Honorable James P. Churchill, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation