United States of America, Plaintiff-appellee, v. Ralph Anthony Upshaw, Defendant-appellant, 108 F.3d 340 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 108 F.3d 340 (9th Cir. 1997) Submitted Feb. 18, 1997. *Decided Feb. 20, 1997

Before: ALARCN, CANBY and TASHIMA, Circuit Judges.

MEMORANDUM** 

Ralph Anthony Upshaw appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence for manufacturing methamphetamine and maintaining a place of business for the manufacture of methamphetamine. We affirm.

Upshaw contends that the district court violated his due process rights by sentencing him for manufacturing D-methamphetamine rather than L-methamphetamine because the government offered no evidence regarding the type of methamphetamine. He also contends that he was denied the effective assistance of counsel because his attorney did not object to the government's failure to prove that he possessed D-methamphetamine. These contentions are foreclosed by United States v. McMullen, 98 F.3d 1155 (9th Cir. 1996) (D-methamphetamine/L-methamphetamine claim is a nonconstitutional sentencing issue and may not be raised for the first time in a § 2255 motion; defense counsel's failure to pursue the issue at sentencing did not fall below an objective standard of reasonableness).

AFFIRMED.1 

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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

Upshaw's request for oral argument is denied

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