103 F.3d 143
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Rex Jay RANDALL, Defendant-Appellant.
No. 96-35212.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 5, 1996.*
Decided Nov. 7, 1996.
Before: PREGERSON, REINHARDT, and T.G. NELSON, Circuit Judges.
MEMORANDUM**
Federal prisoner Rex Jay Randall appeals the district court's denial of his 28 U.S.C. § 2255 motion. We review de novo a district court's decision on a § 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.
Randall correctly recognizes that he has waived his substantive claim that the government failed to prove at sentencing that he possessed d-methamphetamine and not l-methamphetamine. See United States v. McMullen, No. 95-36031, slip op. at 14013 (9th Cir. Oct. 23, 1996); United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.1994) (nonconstitutional sentencing errors raised for first time in § 2255 motion waived; cause and prejudice standard does not apply).
Randall's claim that his counsel was ineffective for failing to raise the l- versus d-methamphetamine argument at sentencing is foreclosed by our decision in McMullen. Randall fails to show either that counsel's performance was objectively unreasonable, or that prejudice ensued from counsel's failure to raise the argument at sentencing. See McMullen, No. 95-36031, slip op. at 14014-15.
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