Unpublished Disposition, 904 F.2d 40 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 40 (9th Cir. 1990)

Joseph George CALDWELL, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 89-15647.

United States Court of Appeals, Ninth Circuit.

Submitted May 24, 1990.* Decided May 29, 1990.

Before SCHROEDER, REINHARDT and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Joseph George Caldwell, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. Caldwell contends that (1) the evidence was insufficient to support his conviction for wire fraud under 18 U.S.C. § 1343 and (2) the consecutive sentences imposed for his conviction on one count of wire fraud and one count of mail fraud violated his right to due process. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and affirm.

* Caldwell contends that the evidence was insufficient to establish that he made a telephone call in furtherance of a scheme to defraud as required to support a conviction under 18 U.S.C. § 1343. This contention is meritless.

Absent "exceptional circumstances," an objection to the sufficiency of the evidence is not a ground for relief under 28 U.S.C. § 2255. Rivera v. United States, 318 F.2d 606, 607-08 n. 2 (9th Cir. 1963). See also Myers v. Rhay, 577 F.2d 504, 511 (9th Cir.) (habeas petition under section 2254 challenging the sufficiency of the evidence may be granted only if conviction were "totally devoid of evidentiary support"), cert. denied, 439 U.S. 968 (1978).

Here, a witness testified at trial that Caldwell made at least one telephone call in furtherance of a scheme to defraud. The weight and credibility to be given to this testimony was an issue for the jury to decide. Therefore, Caldwell's conviction is supported by sufficient evidence. See id.; Rivera, 318 F.2d at 607-08 n. 2.

II

Caldwell contends that the imposition of consecutive sentences violated his right to due process because his conviction for one count of wire fraud and one count of mail fraud arose from a single scheme to defraud. This contention is meritless.

Under 18 U.S.C. §§ 1341 and 1343, each mailing and each telephone call in furtherance of a single scheme to defraud constitutes a separate offense. United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987) (citations omitted), cert. denied, 485 U.S. 1029 (1988). Moreover, sections 1341 (mail fraud) and 1343 (wire fraud) define separate offenses that require proof of different elements.

Accordingly, because Caldwell was convicted of two separate offenses, the consecutive sentences he received are not unconstitutional. See 18 U.S.C. §§ 1341 and 1343; Poliak, 823 F.2d at 372.1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Caldwell's request for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Caldwell argues that his sentence is unconstitutional because it is greater than the sentence that would have been imposed if he had been subject to the Sentencing Guidelines. The Guidelines, however, apply only to crimes committed after November 1, 1987, and have no effect on sentences imposed for crimes committed before that date