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United States v. Gravley

*fn* submitted: March 23, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES C. GRAVLEY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon. D.C. Nos. CV-92-6167-MRH, CR-91-60117-MRH, CR-91-60155-MRH. Michael R. Hogan, District Judge, Presiding

Before: Wallace, Chief Judge, Farris and Brunetti, Circuit Judges.

MEMORANDUM

James C. Gravley, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion. In case no. CR-91-60117, Gravely pleaded guilty to structuring a currency transaction to evade reporting requirements, in violation of 31 U.S.C. § 5324. In case no. CR-91-60155, he pleaded guilty to mail fraud, in violation of 18 U.S.C. § 1341. After a sentencing hearing on November 13, 1991, he received concurrent sentences of 28 and 46 months imprisonment. Gravley contends that (1) the government breached the plea agreement by failing to make certain sentencing recommendations; (2) the district court improperly considered two presentence reports; (3) the district court erred by failing to give reasons for departing upward; and (4) the district court erred by finding that Gravley did not accept responsibility for the offenses. We have jurisdiction under 28 U.S.C. § 2255, and we affirm.

"If a criminal defendant could have raised a claim of error on direct appeal but nonetheless failed to do so, he must demonstrate both cause excusing his procedural default, and actual prejudice resulting from the claim of error." United States v. Johnson, No. 91-30242, slip op. 1919, 1927 (9th Cir. Mar. 4, 1993) (citing United States v. Frady, 456 U.S. 152, 168 (1982)).

Gravley did not file a direct appeal. Moreover, he did not object at the sentencing hearing to the multiple presentence reports. He has not made any attempt to show cause and prejudice for this procedural default. Accordingly, the district court did not err by denying his section 2255 motion. See id.

AFFIRMED.

Disposition

AFFIRME ...


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