Kenneth B. Jones v. United States ( 1996 )

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No. 95-3200
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Kenneth B. Jones, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: March 1, 1996
Filed: March 7, 1996
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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Kenneth B. Jones appeals from the district court's1 order denying his
28 U.S.C. § 2255 motion. After de novo review, we affirm.
In 1993, Jones pleaded guilty to an information charging him with
attempting to possess with intent to distribute fifteen kilograms or more
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In accordance
with the parties' stipulations, the district court sentenced Jones to 151
months imprisonment and five years supervised release, and ordered Jones
to pay a $5,000
1
The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri, adopting the report and
recommendation of the Honorable Lawrence O. Davis, United States
Magistrate Judge for the Eastern District of Missouri.
fine; Jones did not appeal.
In 1994, Jones filed this section 2255 motion arguing, among other
things, that the district court erred by assessing a firearm enhancement
pursuant to U.S.S.G. § 2D1.1(b)(1); that his prosecution and conviction for
the drug offense was barred on double jeopardy grounds based on the
uncontested administrative forfeiture of $43,100; and that trial counsel
was ineffective for failing to raise these issues on direct appeal. The
district court denied Jones's motion on the merits.
We have repeatedly stated that "[a] defendant who explicitly and
voluntarily exposes himself to a specific sentence may not challenge that
punishment on appeal." United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.
1995) (citing United States v. Durham, 963 F.2d 185, 187 (8th Cir.), cert.
denied, 506 U.S. 1023 (1992), and United States v. Fritsch, 891 F.2d 667,
668 (8th Cir. 1989)). Here, the record shows that at sentencing James
explicitly and voluntarily stipulated to a 151-month sentence. Because the
firearm enhancement claim Jones now asserts directly challenges that
sentence, we conclude he is foreclosed from raising it. We also conclude
that Jones's double jeopardy claim is foreclosed by this court's opinion
in United States v. Clementi, 70 F.3d 997, 1000 (8th Cir. 1995).
Accordingly, we need not consider whether Jones was denied effective
assistance. See Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir. 1994)
(no ineffective assistance if claim defendant alleges counsel should have
pursued is meritless).
Finally, we will address neither the claims Jones raises for the
first time on appeal, see Thomas v. United States, 27 F.3d 321, 325 (8th
Cir. 1994), nor the issue raised for the first time in his reply brief, see
Falco Lime, Inc. v. Tide Towing Co., 29 F.3d 362, 367 n.6 (8th Cir. 1994).
The judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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