United States of America, Plaintiff-appellee, v. Donald Campbell, Defendant-appellant, 87 F.3d 1323 (9th Cir. 1996)

MEMORANDUM^** 

Federal prisoner Donald Campbell appeals the district court's denial of his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo, United States v. Moore, 921 F.2d 207, 209 (9th Cir. 1990), and affirm.

Nine years after sentencing, Campbell contends his sentence is illegal because the district court ordered him to pay $506,000 in restitution without first considering his ability to pay as required by 18 U.S.C. §§ 3579, 3580 (1982) (renumbered 18 U.S.C. §§ 3663, 3664 (1986)). Campbell did not raise this issue at sentencing or on appeal. Consequently, the issue is waived. See United States v. Clack, 957 F.2d 659, 661 (9th Cir. 1992) (failure to object at sentencing to restitution order based on inability to pay constitutes waiver of the issue); see also United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) (nonconstitutional claims of sentencing error not raised on direct appeal may not be raised by section 2255 motion); cf. United States v. Jackson, 982 F.2d 1279, 1284-85 (9th Cir. 1992) (if by end of term of supervised release former prisoner is unable to pay full restitution, he may petition district court for extension of time or for a remittitur).

AFFIRMED.