United States v. Rosell ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6681
LAZARO ROSELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-89-34-F, CA-96-9-F)
Submitted: January 7, 1997
Decided: February 4, 1997
Before WIDENER, MURNAGHAN, and NIEMEYER,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Lazaro Rosell, Appellant Pro Se. Charles Edwin Hamilton, III,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lazaro Rosell appeals the district court's order dismissing his
motion under 28 U.S.C. § 2255 (1994), amended by Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214. We affirm.
A jury convicted Rosell of conspiracy to possess with the intent to
distribute cocaine in violation of 21 U.S.C. § 846 (1994). Rosell
appealed the conviction to this court, which affirmed the district
court. United States v. Rosell, No. 90-5208 (4th Cir. Apr. 2, 1991)
(unpublished). Rosell then filed this § 2255 motion raising the follow-
ing claims:
(1) The Government violated Rosell's due process rights
by illegally altering the indictment;
(2) the district court improperly sentenced Rosell under
the United States Sentencing Guidelines ("USSG"),*
because they were not in effect at the time of his
offense, and the district court improperly imposed
supervised release;
(3) Rosell received ineffective assistance of counsel
because counsel failed to prepare for the sentencing
hearing and failed to point out to the court that Rosell
should not have been sentenced under the USSG; and
(4) Rosell's sentence violated the Ex Post Facto Clause of
the Constitution.
We find that Rosell is not entitled to relief on any of his allegations.
Rosell's first claim is waived under Fed. R. Crim. P. 12(b)(2) and (f),
which states that any "defense or objections based on defects in the
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*United States Sentencing Commission, Guidelines Manual (Nov.
1989). Rosell was sentenced in August 1990.
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indictment" must be raised prior to trial and failure to raise such
defenses or objections constitutes a waiver. Rosell's second claim
also fails. His claim that he was improperly sentenced under the
USSG is a nonconstitutional claim not raised on appeal and is there-
fore not properly raised in this collateral proceeding. Stone v. Powell,
428 U.S. 465, 477 n.10 (1976). His claim that supervised release is
improper under § 846 fails because § 846 was amended in 1988 to
allow for terms of supervised release. United States v. Montoya, 891
F.2d 1273, 1293 n.25 (7th Cir. 1989). Rosell's third claim is meritless
because Rosell failed to establish that his attorney's performance fell
below a reasonable standard of effectiveness or that he was prejudiced
by his attorney's performance in any way. Strickland v. Washington,
466 U.S. 668 (1984). Finally, Rosell's fourth claim fails because this
Court has held that the application of the USSG to a"straddle con-
spiracy," as this one was, does not violate the Ex Post Facto Clause.
United States v. Meitinger, 901 F.2d 27, 28 (4th Cir. 1990).
Accordingly, we affirm the district court. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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