John W. Zavada, Jr. v. United States

46 F.3d 1134

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
John W. ZAVADA, Jr., Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 93-2296.

United States Court of Appeals, Seventh Circuit.

Submitted: Jan. 30, 1995.*
Decided: Feb. 6, 1995.

Appeal from the United States District Court, for the Eastern District of Wisconsin, Nos. 90-CR-104 & 93-C-124; Terence T. Evans, Chief Judge.

E.D.Wis.

AFFIRMED.

Before CUMMINGS, EASTERBROOK and RIPPLE, Circuit Judges.

ORDER

1

John Zavada is serving a sentence of 51 months' imprisonment for possessing cocaine with intent to distribute that substance, in violation of 21 U.S.C. Sec.841(a)(1). He pleaded guilty to that charge, received the normal sentence, and did not appeal. Now he has changed his mind, seeking relief under 28 U.S.C. Sec.2255 on the theory that Sec.841(a)(1), lacking any penalty provision, does not create federal jurisdiction, and that his lawyer was constitutionally ineffective for failing to point out this defect to the district court.

2

By pleading guilty, Zavada has waived this challenge to his sentence unless it may be called "jurisdictional." United States v. Broce, 488 U.S. 563 (1989). We do not see how it can deserve that appellation: the jurisdiction of the district court was secure under 18 U.S.C. Sec.3231. Arguments about the proper sentence for a federal crime generally must be presented on direct appeal. Scott v. United States, 997 F.2d 340 (7th Cir. 1993). Perhaps Zavada sees his attack on counsel as the way to establish "cause" for not making the claim earlier. But we do not think counsel deficient for failing to present the contention. Section 841(b) provides a schedule of penalties for violations of Sec.841(a). No rule of law requires the penalties for crime to appear in the same subsection as the substantive prohibition.

3

AFFIRMED.

*

After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed. R. App. P. 34(a), Circuit Rule 34(f). No such statement has been filed, so the appeal is submitted for decision on the briefs and record