United States v. Welch ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7469
JIMMIE WELCH,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-95-3592-2-18, CR-91-571)
Submitted: February 10, 1998
Decided: February 26, 1998
Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Jimmie Welch, Appellant Pro Se. Albert Peter Shahid, Jr., SHAHID
LAW OFFICE, L.L.C., Charleston, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Jimmie Owen Welch appeals from a district court order
that granted summary judgment to the Government in his 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1997) action. Because we find no revers-
ible error, we affirm.
We review the grant of summary judgment de novo. See Higgins
v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is properly granted when there are no gen-
uine issues of material fact and when the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reason-
able inferences are drawn in favor of the non-moving party. See Cole
v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980).
Welch asserts that two of his convictions violate Double Jeopardy.
We conclude that this claim is waived. Welch fails to establish that
he objected to the indictment prior to trial, and he did not appeal his
convictions. Neither has he demonstrated cause and prejudice for this
default. See United States v. Frady, 456 U.S. 152, 167-68 (1982).
Welch continues that he was improperly sentenced based upon a
quantity of marijuana related to conduct for which he was acquitted.
This is a nonconstitutional claim that could have been raised on direct
appeal but was not. Welch may not now assert it in a collateral pro-
ceeding. See Stone v. Powell, 428 U.S. 465, 477 n.10 (1976).
Next, Welch alleges that his indictment was both duplicitous and
multiplicitous. Such challenges must be raised prior to trial or they are
waived absent cause for the waiver. See Fed. R. Crim. P. 12(b)(2);
United States v. Price, 763 F.2d 640, 643 (4th Cir. 1985). Welch fails
to establish that these claims were raised in timely fashion, nor has
he demonstrated cause for the waiver. Therefore, these claims are
waived.
Welch also alleges that he received ineffective assistance of coun-
sel at trial because his attorney failed to adequately research and
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investigate his case. We find that he has failed to adequately establish
this claim. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
Welch also asserts prosecutorial misconduct in grand jury proceed-
ings. Such a claim should be made prior to trial under Fed. R. Crim.
P. 12(b)(2), or the claim is waived, foreclosing collateral review
absent cause and prejudice, which Welch fails to establish. See Davis
v. United States, 411 U.S. 233, 242 (1973).
Welch also attacks the calculation of his Guidelines sentence.* He
asserts that the calculation of his criminal history category was erro-
neous because it accorded him one point for a DUI conviction. This
is a nonconstitutional claim that could have been raised on direct
appeal but was not. Welch may not now assert the claim in this collat-
eral proceeding. See Stone, 428 U.S. at 477 n.10.
In regard to his other sentencing claim, Welch correctly asserts that
Guidelines Amendment 516 altered the calculation of a quantity of
marijuana from a quantity of harvested plants. Under the amendment,
the Sentencing Commission adopted "an equivalency of 100 grams
per plant, or the actual weight of the usable marihuana, whichever is
greater." USSG § 2D1.1, comment. (backg'd). The record discloses
that Welch was held accountable for 677 pounds, or 307.08 kilo-
grams, of marijuana. According to the pre-sentence report, this is the
quantity involved in six marijuana transactions linked to the Welch
conspiracy between September and November 1991. According to the
record, there were no objections to this quantity. Since this "actual
weight" of distributed marijuana exceeded the amount calculated
under USSG § 2D1.1, the sentencing court properly calculated the
offense level based upon the higher actual weight. See USSG
§ 2D1.1(c), n.(E) & comment. (backg'd); United States v. Fletcher,
74 F.3d 49, 55 n.4 (4th Cir. 1996).
Even if the district court misconstrued Amendment 516, an error
in sentencing is a nonconstitutional error that does not provide a basis
for collateral attack unless it involves a "fundamental defect which
inherently results in a complete miscarriage of justice." United States
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*U.S. Sentencing Guidelines Manual (1992). Welch was sentenced in
February 1993.
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v. Addonizio, 442 U.S. 178, 185 (1979). Since Welch's sentence was
not ultimately affected by the amendment, we find no such "funda-
mental defect." We therefore affirm the district court's order. We dis-
pense with oral argument because the factual and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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