Frank Johnson, Petitioner-appellant, v. United States of America, Respondent-appellee, 941 F.2d 1210 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 941 F.2d 1210 (6th Cir. 1991) Aug. 14, 1991

Before NATHANIEL R. JONES and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.


Frank Johnson, a pro se federal prisoner, appeals from the denial of his motion to vacate sentence filed under 28 U.S.C. § 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Johnson entered a plea to conspiring to unlawfully possess with intent to distribute cocaine. 21 U.S.C. § 841(a) (1). He was sentenced to 37 months imprisonment. Johnson claims that he was unlawfully induced to plead guilty; that he reasonably understood the agreement to be for a sentence of 16 months; that his counsel was ineffective; and, that he would not have pleaded guilty had he known that he would receive a 37 month sentence.

The district court denied the motion, finding it to be without foundation. Upon consideration, this court concludes that the motion was properly denied, as the factual findings underlying the district court's decision are not clearly erroneous. United States v. Perez, 871 F.2d 45, 47-48 (6th Cir.), cert. denied, 492 U.S. 910 (1989). The amount of drugs was correctly determined in the presentence report, see United States v. Gonzales, 929 F.2d 213, 216 (6th Cir. 1991), and the court did not violate the plea agreement when it sentenced Johnson based on that amount.

Accordingly, the order of the district court is hereby affirmed for the reasons set forth therein. Rule 9(b) (3), Rules of the Sixth Circuit.