Unpublished Dispositionjudith Ann Caldwell, Petitioner-appellant, v. United States of America, Respondent-appellee, 856 F.2d 193 (6th Cir. 1988)

Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges and DOUGLAS W. HILLMAN, Chief District Judge.^* 

ORDER

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

Petitioner Judith Ann Caldwell was convicted in 1983 of conspiracy to possess marijuana (21 U.S.C. § 846) and the conviction was subsequently affirmed by a panel of this court. She brought the instant motion to vacate her sentence under 28 U.S.C. § 2255 attacking the constitutionality of this 1983 conviction. The magistrate to whom the case was assigned recommended the motion be denied and the district court adopted this recommendation over petitioner's objections. This appeal followed. On appeal the parties have briefed the issues, petitioner proceeding pro se.

Upon consideration, we agree with the district court's disposition of this case. We find petitioner's sole ground for relief, that there was a variance between the crime charged and the proof adduced at trial, to be without merit. The prosecution clearly proceeded against petitioner based on the language of the indictment and, as we held on direct appeal of the conviction, the jury had ample evidence of the specific crime charged on which to premise a guilty verdict.

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.