United States v. Manago ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7780
BERNADELL MANAGO, a/k/a Heaven,
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-91-14-F, CA-96-720-5-F)
Submitted: May 30, 1997
Decided: June 18, 1997
Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Bernadell Manago, Appellant Pro Se. Bruce Charles Johnson,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant seeks to appeal the district court's order denying her
motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997).
Pursuant to a plea agreement, Appellant pled guilty in 1991 to con-
spiracy to distribute crack cocaine. She appealed her sentence to this
court and we affirmed. United States v. Ellis , 975 F.2d 1061 (4th Cir.
1992).
Appellant first contends that she should have received an additional
one point reduction in her base offense level for acceptance of respon-
sibility, and an additional reduction because she was a minor partici-
pant. Non-constitutional claims such as these, however, which could
have been raised on direct appeal, but were not, may not be asserted
in a collateral proceeding. United States v. Emanuel, 869 F.2d 795,
796 (4th Cir. 1989). These claims were therefore properly dismissed.
Appellant next maintains that she should have received a down-
ward departure in sentencing for serious coercion and duress. The
record discloses, however, that Appellant did in fact receive such a
departure. This contention is thus also meritless. Appellant also
asserts that the actual amount of drugs should have been used to cal-
culate her base offense offense level. A review of our opinion in Ellis
reveals that we already considered and rejected this contention. We
therefore will not reconsider the issue on collateral review. See
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).
Appellant next claims that her attorney was ineffective because his
office was too far away from where she was incarcerated and because
he never informed her of her right to appeal. After a close review of
the record, we find this claim to be without merit because Appellant
cannot show that her attorney was incompetent. See Strickland v.
Washington, 466 U.S. 668, 687-94 (1984); see also Hill v. Lockhart,
474 U.S. 52 (1985). Moreover, absent extraordinary circumstances, a
defendant pleading guilty need not be informed of the right to appeal.
See Carey v. Leverette, 605 F.2d 745, 746 (4th Cir. 1979).
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Appellant also contends that she was never informed at her sen-
tencing hearing of the right to appeal pursuant to Fed. R. Crim. P.
32(a)(2), and that she should have been given her own unconsolidated
appeal of right. As the record demonstrates that Appellant did appeal
on numerous grounds which were fully addressed by this court, we
find these claims to be meritless.
Finally, Appellant maintains that her rights under the Speedy Trial
Act were violated because of the length of time that passed from the
time she was taken into custody and then indicted. This claim lacks
merit, however, because the failure to move for dismissal on this basis
prior to trial or a plea of guilty constitutes a waiver of that right under
the Act. 18 U.S.C. § 3162(a)(2) (1994).
Accordingly, we deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
DISMISSED
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