United States of America, Plaintiff-appellee, v. Jimmy Earl Ennis, Defendant-appellant, 105 F.3d 667 (9th Cir. 1996)

MEMORANDUM^** 

Jimmy Earl Ennis appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his conviction and life sentence for conspiracy to manufacture and possess with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a) (1) and 846, and use of a firearm during a drug trafficking crime, 18 U.S.C. § 924(c). Ennis contends that the district court: (1) lacked subject matter jurisdiction over the conspiracy charge; (2) violated Ennis's Fifth Amendment rights by accepting his guilty plea to an unindicted charge; and (3) violated Fed. R. Crim. P. 11(c). Additionally, Ennis contends that his trial counsel was ineffective. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2255. We review de novo, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and affirm.

Ennis contends that the district court lacked subject matter jurisdiction because the second superseding indictment failed to charge him with distributing "methamphetamine (a substance) its salts, isomers, and salts of its isomers." We disagree.

Ennis was charged by second superseding indictment with "conspiracy to manufacture and possess with intent to distribute methamphetamine, a schedule II controlled substance," in violation of 21 U.S.C. §§ 841(a), 846. Ennis's contention that "methamphetamine, a schedule II controlled substance" is not the same as "methamphetamine its salts, isomers, and salts of its isomers" is without merit. See 21 U.S.C. § 812, Schedule II(c). Therefore, the district court had jurisdiction over the conspiracy charge.¹ 

Ennis contends that the district court violated Fed. R. Crim. P. 11(c) (1) by not informing him of the consequences of his guilty plea and by omitting the phrase "a schedule II controlled substance" from the judgment of conviction. Ennis claims that his guilty plea was therefore not knowing and voluntary.

Before accepting a guilty plea, the district court must inform the defendant of the charges and of the minimum and maximum statutory penalties and must assure on the record that the defendant understands the plea. Fed. R. Crim. P. 11(c) (1); United States v. Smith, 60 F.3d 595, 597 (9th Cir. 1995). To successfully challenge a guilty plea based on a Rule 11 violation under section 2255, the prisoner must show that the violation amounted to a constitutional or jurisdictional error or a complete miscarriage of justice, and must establish prejudice by showing that he was unaware of the consequences of his plea and would not have pleaded guilty if properly advised. United States v. Timmreck, 441 U.S. 780, 783-85 (1979); United States v. Grewal 825 F.2d 220, 222 (9th Cir. 1987).

During the Rule 11 colloquy, the district court correctly advised Ennis of the mandatory minimum and maximum penalties relating to each of the charges. Additionally, the district court explained that the firearms charge carried a "mandatory [sentence] of five years without parole, without probation, and it's added on to or consecutive to any sentence on the drug charge." When asked whether Ennis understood the penalties he could receive if he pled guilty, Ennis replied "yes." Because the district court accurately and thoroughly advised Ennis of the consequences of his guilty plea, we reject Ennis's Rule 11 contention. See Timmreck, 441 U.S. at 783-85; Grewal, 825 F.2d at 222.² 

Ennis contends that his counsel provided ineffective assistance by: (1) failing to argue that the district court lacked subject matter jurisdiction; and (2) permitting him to plead guilty to an unindicted charge. Because we reject these contentions, Ennis's claim that his counsel provided ineffective assistance by failing to raise such contentions is without merit. See United States v. Shah, 878 F.2d 1156, 1162 (9th Cir. 1989) (failure to raise meritless legal argument does not constitute ineffective assistance of counsel).³ 

AFFIRMED.