United States of America, Plaintiff-appellee, v. Samuel Weissberg, Defendant-appellant, 122 F.3d 1075 (9th Cir. 1997)

MEMORANDUM^* 

Weissberg argues he was denied due process because his sentence was based on a "presumption" that he possessed Dmethamphetamine and because the government failed to establish the type of methamphetamine involved which was part of its burden of proof. This argument asserts a computational error in Weissberg's presentence report, and "computational errors in a petitioner's presentence report do not give rise to a constitutional issue." United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996). Since Weissberg did not raise this issue at sentencing or on direct appeal, he may not raise it in a § 2255 petition. See id.

Weissberg argues he was provided ineffective assistance of counsel. Weissberg bears the burden of demonstrating his counsel's behavior was objectively unreasonable. See United States v. Quitero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). In light of McMullen, failure to investigate whether the drug involved was Dmethamphetamine or L-methamphetamine was objectively reasonable in the absence of any suggestion that the drug involved was Lmethamphetamine. See McMullen, 98 F.3d at 1158. Because Weissberg did not allege his trial counsel was told the substance was Lmethamphetamine, Weissbergnn has not made the specific factual allegations which, if true, might entitle him to relief.

AFFIRMED.