Arnold Ray Heightland, Petitioner-appellant, v. United States of America, Respondent-appellee, 14 F.3d 601 (6th Cir. 1993)

Before: BOGGS and SUHRHEINRICH, Circuit Judges, and CHURCHILL, Senior District Judge.^* 

ORDER

Arnold Ray Heightland appeals a district court order denying his motion to vacate sentence filed pursuant to 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).

In 1987, a jury found Heightland guilty of willfully damaging, with reckless disregard for the safety of human life, a motor vehicle used, operated or employed in interstate commerce, knowingly using and carrying a firearm during and in relation to a crime of violence, and knowingly receiving a firearm after having been previously convicted of murder. The district court sentenced Heightland to forty-five years of imprisonment. On appeal, this court affirmed his conviction. United States v. Heightland, 865 F.2d 94 (6th Cir.), cert. denied, 493 U.S. 826 (1989).

Heightland subsequently filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. In his motion, Heightland alleged that: 1) the district court failed to comply with the requirements of Fed. R. Crim. P. 32(c) (3) (D) in sentencing him; 2) his counsel at sentencing provided ineffective assistance; and 3) the district court improperly permitted a magistrate judge to read the instructions to the jury at trial. The magistrate judge issued a report, recommending dismissal of Heightland's claims as meritless. Over Heightland's objections, the district court adopted the magistrate judge's report and recommendation and dismissed the case. Heightland has filed a timely appeal.

Upon review, we conclude that Heightland has not shown a fundamental defect in the proceedings that inherently resulted in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process. United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). The district court complied with the requirements of Fed. R. Crim. P. 32(c) (3) (D) in sentencing Heightland, as it did not actually rely on any inaccurate information in the presentence investigation report in sentencing Heightland, and it later directed that certain inaccurate information be deleted from the report. United States v. Mandell, 905 F.2d 970, 973-74 (6th Cir. 1990). Further, Heightland was not prejudiced by any allegedly deficient performance by his trial counsel at sentencing. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Lastly, we conclude that the magistrate judge properly read the instructions to the jury during Heightland's trial. Allen v. United States, 921 F.2d 78, 79-80 (6th Cir. 1990), cert. denied, 111 S. Ct. 2896 (1991).

Accordingly, we affirm the judgment for the reasons set forth in the magistrate judge's report and recommendation filed on February 16, 1993, as adopted by the district court in its order filed on June 18, 1993. Rule 9(b) (3), Rules of the Sixth Circuit.