United States v. Yost ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6370
RONALD RAY YOST,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-90-47, CA-95-891)
Submitted: January 20, 1998
Decided: April 17, 1998
Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Ronald Ray Yost, Appellant Pro Se. Michael Lee Keller, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant appeals the district court's order denying his motion
filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). We have
reviewed the record and the district court's opinion accepting the rec-
ommendation of the magistrate judge and find no reversible error.
Appellant asserts that he was denied due process of law at sentencing
because the Government failed to show and the court failed to
expressly find that the methamphetamine attributed to Appellant was
D-methamphetamine. Appellant failed to raise this issue on direct
appeal. We conclude that even if Appellant has demonstrated cause
for his default, he has not established actual prejudice. We therefore
find the claim barred by his default. See United States v. Frady, 456
U.S. 152, 167-68 (1982).
Appellant also asserts that counsel was ineffective at sentencing
and on appeal for failing to challenge an inadequate factual determi-
nation as to type of methamphetamine attributed to him at sentencing.
We affirm the district court's order as to this claim because Appellant
failed to establish that but for counsel's errors, he would not have
pled guilty. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Strickland
v. Washington, 466 U.S. 668 (1984). Finally, we find that Appellant
has waived review of his claim that the district court abused its discre-
tion when it assumed the substance attributed to Appellant was D-
methamphetamine because he did not raise this claim at sentencing or
on direct appeal. See Stone v. Powell, 428 U.S. 465, 477 n.10 (1976);
United States v. Emanuel, 869 F.2d 795, 796 (4th Cir. 1989).
Accordingly, we affirm the district court's order. 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.
AFFIRMED
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