United States v. Jose Gonzalez-Macias , 61 F.3d 913 ( 1995 )

61 F.3d 913

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Petitioner-Appellee,
v.
Jose GONZALEZ-MACIAS, Respondent-Appellant.

No. 95-55091.

United States Court of Appeals, Ninth Circuit.

Submitted July 17, 1995.*
Decided July 20, 1995.

Before: FLETCHER, KOZINSKI and THOMPSON, Circuit Judges.

1

MEMORANDUM**

2

Federal prisoner Jose Gonzalez-Macias appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion to vacate his sentence under the Sentencing Guidelines imposed following his conviction for conspiracy to distribute cocaine. We have jurisdiction pursuant 28 U.S.C. Sec. 2255,1 and we affirm.

3

Gonzalez-Macias contends that the district court erred in finding that he was reasonably capable of producing fifty kilograms of cocaine and that a codefendant displayed ten kilograms of cocaine. We rejected these contentions in Gonzalez-Macias's direct appeal. See United States v. Gonzalez-Macias, No. 91-50773 (unpublished disposition) (9th Cir. Oct. 27, 1992). A contention previously rejected on direct appeal cannot be the basis of a Sec. 2255 motion absent an intervening change in the law or manifest injustice, neither of which are present here. See Walter v. United States, 969 F.2d 814, 816-17 (9th Cir. 1992); United States v. Redd, 757 F.2d 699, 701 (9th Cir. 1985).

4

Accordingly, we affirm the district court's denial of Gonzalez-Macias's Sec. 2255 motion.

5

AFFIRMED.

*

The panel unanimously finds this case suitable for decision 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

We construe Gonzalez-Macias's motion for reconsideration or, in the alternative, notice of appeal as a timely notice of appeal from the district court's order denying Gonzalez-Macias's section 2255 motion. See Allah v. Superior Court, 871 F.2d 887, 889-90 (9th Cir. 1989)