United States of America, Plaintiff-appellee, v. Sergio Montoya, Defendant-appellant, 67 F.3d 310 (9th Cir. 1995)

MEMORANDUM^** 

Sergio Montoya appeals the district court's denial of his petition for relief under 28 U.S.C. § 2255. Montoya contends that it is unclear from the record whether the district court used its discretion when it denied his motion for a downward departure. He also renews the claim rejected on direct appeal that he was sentenced on the basis of unreliable information, and should have received an evidentiary hearing. We have jurisdiction under 28 U.S.C. § 2255 and we affirm.

We review de novo the district court's denial of a petition for relief under 28 U.S.C. § 2255. Grady v. United States, 929 F.2d 468, 470 (9th Cir. 1991).

We decline to consider Montoya's claim that the district court misapprehended its discretion to depart as there is no basis here for allowing collateral attack "to do service for an appeal." See United States v. Schlesinger, 38 F.3d 485, 487 (9th Cir. 1994). Although ordinarily, we decline to review issues decided adversely to a defendant on direct appeal, see United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985), here, the district court granted discretionary review of Montoya's sentencing claims, see Walter v. United States, 969 F.2d 814, 816 (9th Cir. 1992). We affirm for the second time the district court's conclusion that Montoya was properly sentenced and fairly denied an evidentiary hearing. Grady, 929 F.2d at 470.

AFFIRMED.