United States of America, Plaintiff-appellee, v. Alhaji Gani Majekodunmi, Defendant-appellant, 133 F.3d 930 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 133 F.3d 930 (9th Cir. 1997) Submitted Dec. 15, 1997. **Decided Dec. 17, 1997

Before: SNEED, LEAVY, and TROTT, Circuit Judges.


MEMORANDUM* 

Federal prisoner Alhaji Gani Majekodunmi appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his 235-month sentence imposed following his jury conviction for conspiracy to import heroin and importation of heroin. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255. We review de novo a district court's denial of a section 2255 motion, see United States v. McMullen, 98 F.3d 1155, 1156-57 (9th Cir. 1996), cert. denied, 117 S. Ct. 2444 (1997), and we affirm.

Majekodunmi contends that the district court erred by adjusting Majekodunmi's offense level upward-by four levels pursuant to the U.S. Sentencing Guidelines Manual § 3B1.1(a) because he supervised fewer than five participants. Majekodunmi, however, is precluded from raising this contention in a section 2255 motion, because he failed to raise this nonconstitutional issue at sentencing or on direct appeal. See id. at 1157; United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994).

Majekodunmi also contends that his counsel was ineffective for failing to raise the above issue at sentencing. Majekodunmi, however, fails to demonstrate that his counsel's performance was deficient and that Majekodunmi was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

AFFIRMED.

 **

The panel unanimously finds this case suitable for decision without oral argument. See 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