Unpublished Dispositionmichael Fry, Petitioner-appellant, v. United States of America, Respondent-appellee, 932 F.2d 968 (6th Cir. 1991)

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 briefs and the record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Michael Fry appeals the denial of his motion to vacate his pre-guidelines sentence filed under 28 U.S.C. § 2255. Pursuant to a plea bargain agreement, Fry pleaded guilty to one count of possession with intent to distribute cocaine and to one count of filing a false income tax return in the district court in October 1987. The district court sentenced Fry to concurrent terms of imprisonment of 8 years and 2 years, respectively, followed by a 4 year term of supervised release. Thereafter, Fry filed a Fed. R. Crim. P. 35 motion to reduce his sentence by counsel, which the district court denied. Fry did not appeal.

Next, Fry filed the instant motion to vacate his sentence by counsel in the district court, alleging that his substantial cooperation with the government after sentencing constitutes an exceptional circumstance warranting a reduction of sentence under Sec. 2255. The government responded in opposition, and Fry filed a reply. The district court denied the motion to vacate. On appeal, Fry is proceeding pro se and contends: (1) that his cooperation with the government after sentencing warrants a reduction in sentence, and (2) that he was improperly sentenced under 21 U.S.C. § 841(b) (1) (B) because it was not in effect at the time of his sentencing.

Upon consideration, we affirm the judgment of the district court for the reasons stated in its order filed on June 13, 1990. Rule 9(b) (5), Rules of the Sixth Circuit. Fry's contention that 21 U.S.C. § 841(b) (1) (B) is inapplicable to his June 1987 offense was not asserted in the district court and will not be considered in the first instance on appeal, see Chandler v. Jones, 813 F.2d 773, 777 (6th Cir. 1987), and is without merit in any event. See Gozlon-Peretz v. United States, 111 S. Ct. 840, 848 (1991).