Louis Edward Fryhover, Petitioner-appellant, v. United States of America, Respondent-appellee, 980 F.2d 729 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 980 F.2d 729 (6th Cir. 1992) Dec. 9, 1992

Before MILBURN and BATCHELDER, Circuit Judges, and LIVELY, Senior Circuit 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Louis Edward Fryhover was convicted after a jury trial of six marijuana-related offenses and received an aggregate sentence of 96 months. The multiple-count conviction and sentence were affirmed on direct appeal. United States v. Fryhover, No. 89-1192 (6th Cir. Jan. 3, 1990). Fryhover subsequently moved to vacate this sentence pursuant to 28 U.S.C. § 2255. The magistrate judge to whom this matter was referred recommended that the motion be dismissed. The district court adopted this recommendation over Fryhover's objections and this appeal followed. The parties have briefed the issues; Fryhover is proceeding without counsel.

Upon consideration, we find no error in the district court's decision. Fryhover advances two contentions on appeal, namely, that the sentencing court incorrectly calculated the amount of marijuana involved in his base offense level and that the district court couldn't have considered Fryhover's objections to the magistrate's report before entering judgment against him. Neither argument is persuasive. The essence of the first argument was raised and decided against Fryhover on direct appeal and, manifestly, is of no moment. Stephan v. United States, 496 F.2d 527, 528-29 (6th Cir. 1974) (per curiam), cert. denied, 423 U.S. 861 (1975). Fryhover's second claim, that the district court could not have considered his objections in the short period between their filing and the issuance of the order of dismissal, lacks authority in law or fact.

Accordingly, the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.