United States v. Larry Balidoy Baligad , 60 F.3d 835 ( 1995 )

60 F.3d 835
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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, Plaintiff-Appellee,
v.
Larry Balidoy BALIGAD, Defendant-Appellant.

No. 94-16655.

United States Court of Appeals, Ninth Circuit.

Submitted June 26, 1995.*
Decided July 3, 1995.

Before: O'SCANNLAIN, LEAVY and HAWKINS, Circuit Judges.

1

MEMORANDUM**

2

Federal prisoner Larry Balidoy Baligad appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion. We have jurisdiction under 28 U.S.C. Sec. 2255, and we affirm.

3

Baligad first contends that the district court improperly sentenced him under 21 U.S.C. Sec. 841(b)(1)(A)(viii) because he did not possess pure methamphetamine. We previously rejected this contention in Baligad's direct appeal. See United States v. Baligad, No. 90-10286 (unpublished disposition) (9th Cir. Jan. 16, 1992).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, 759 F.2d 699, 701 (9th Cir. 1985).

4

Baligad next contends that he was denied the effective assistance of counsel. He contends that his attorney should have obtained a chemical analysis of the methamphetamine in order to establish that the methamphetamine was not 100% pure. The ten-year minimum term prescribed by 21 U.S.C. Sec. 841(b)(1)(A)(viii) applies to crimes involving a net amount of 100 grams of methamphetamine regardless of the purity of the methamphetamine. See United States v. Alfeche, 942 F.2d 697, 698-99 (9th Cir. 1991). Accordingly, Baligad's counsel was not ineffective in failing to obtain a chemical analysis of the methamphetamine. See Strickland v. Washington, 466 U.S. 687-690 (1984).

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