United States v. David Nicol

103 F.3d 142

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
David NICOL, Defendant-Appellant.

No. 95-56590.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1996.*
Decided Nov. 7, 1996.

Before: PREGERSON, REINHARDT, and T.G. NELSON, Circuit Judges.

1

MEMORANDUM**

2

David Nicol appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. We review de novo a district court's decision on a section 2255 motion. Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir.1995). We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.1

3

A claim of legal error, as opposed to a claim of jurisdictional or constitutional error, is not cognizable in a 28 U.S.C. § 2255 proceeding unless the error constitutes a fundamental defect resulting in a complete miscarriage of justice. United States v. Addonizio, 442 U.S. 178, 185 (1979); Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir.1995).

4

Nicol claims that the district court erroneously sentenced him by by failing to account for his previously undischarged state prison sentence pursuant to U.S.S.G. § 5G1.3(b) n. 2. Section 5G1.3(b) requires that the federal sentence be imposed concurrently to a previously undischarged sentence from an offense that has "been fully taken into account in the determination of the offense level" for the federal offense. See id.

5

Nicol does not claim constitutional or jurisdictional error. Nor is the type of error alleged a fundamental defect resulting in a complete miscarriage of justice. See Addonizio, 442 U.S. at 185; Hamilton, 67 F.3d at 763-64. In any case, the presentence report shows that the offense level for his federal offense did not take into account his state crime. See U.S.S.G. § 5G1.3(b).

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Because we affirm the denial of the motion under the former version of 28 U.S.C. § 2255, we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal

**

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

1

Appellees waived their claim that Nicol procedurally defaulted by failing to raise the issue in the district court. See Gonzalez v. United States, 33 F.3d 1047, 1049 (9th Cir.1994)