Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

MEMORANDUM

Mantanona seeks to have his conviction on three counts of wire fraud vacated on the ground that the convictions were multiplicitous charges for the same offense. The district court denied his section 2255 petition for habeas corpus, concluding that the convictions constituted three separate offenses. The district court exercised jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

We review a denial of a habeas corpus petition independently (de novo). Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985).

"Each separate use of the wires under the wire fraud statute is a separate offense." United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987), cert. denied, 108 S. Ct. 1586 (1988), citing United States v. Calvert, 523 F.2d 895 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976). Mantanona pleaded guilty to a three-count criminal information, charging three separate violations of 18 U.S.C. § 1343. This information was based upon three separate instances of using the wires to perpetrate a common criminal enterprise. Therefore, the district court was correct in refusing to vacate Mantanona's sentence because of its determination that the three convictions constituted separate offenses.

In his brief to this court, Mantanona challenges the factual basis for his guilty plea; he raises this argument, however, for the first time on appeal. We will not "review an issue not raised below unless necessary to prevent manifest injustice." International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). "Before this court will address such an issue, the proponent must show exceptional circumstances why the issue was not raised below." Id. (quotation omitted). Mantanona, without supporting argument, alleges that this issue involves the essentials of due process. However, a guilty plea waives all nonjurisdictional challenges to a conviction, unless the plea was not intelligently and voluntarily entered. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Mantanona makes no such claim. Therefore, we will not review this issue raised for the first time on appeal because there are no exceptional circumstances explaining why the issue was not presented to the district court.

AFFIRMED.