Mary Ray, Petitioner-appellant, v. United States of America, Respondent-appellee, 968 F.2d 1215 (6th Cir. 1992)

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1988, Mary Ray was convicted following a jury trial of three charges relating to cocaine possession and distribution. Her conviction was affirmed on direct appeal in an unpublished memorandum decision. United States v. Ray, 884 F.2d 1393 (6th Cir. 1989) (TABLE, TEXT IN WESTLAW, CTA6 Database). Ray thereafter filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. The district court denied the relief sought and this appeal followed. Counsel for the parties have briefed the issues.

Upon consideration, we find no reversible error in the decision on review. The lone error assigned is the sentencing court's failure to effect a downward departure in Ray's sentence due to certain equitable concerns and considering the sentences meted out to her codefendants. The assigned error, as framed, would not be cognizable on direct appeal. See, e.g., United States v. Davis, 919 F.2d 1181, 1187 (6th Cir. 1990) (failure of sentencing court to effect downward departure in otherwise valid sentence not appealable). Counsel for Ray has not directed the court to any authority for the proposition that the issue may now be raised in a collateral proceeding and we are not aware of any authority to this effect. The appeal is meritless.

Accordingly, the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.