Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.patty M. Thompson, Appellant, v. United States of America, Appellee, 29 F.3d 628 (8th Cir. 1994)

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US Court of Appeals for the Eighth Circuit - 29 F.3d 628 (8th Cir. 1994) Submitted: June 28, 1994. Filed: July 1, 1994

Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.


Patty M. Thompson appeals the district court's1  dismissal of her 28 U.S.C. § 2255 motion. We affirm.

In 1991, a jury found Thompson guilty of conspiring to manufacture marijuana and manufacturing marijuana. Thompson appealed her convictions and we affirmed. United States v. Curtis, 965 F.2d 610 (8th Cir. 1992). In 1993, Thompson filed this motion, contesting the sufficiency of the evidence and contending that the district court failed to respond to her objections to the presentence report (PSR) and thus violated Federal Rule of Criminal Procedure 32(c) (3) (D). The district court denied the motion, holding that the insufficiency argument was barred and that the record conclusively demonstrated that the court had addressed Thompson's objections and fully complied with Rule 32. The court noted that the only factual objection related to the number of marijuana plants, which the court had found to be 125 instead of 335 as the PSR suggested. This appeal followed.

Because Thompson did not raise her insufficient-evidence claim on direct appeal, she was procedurally barred from raising it in her section 2255 motion, absent a showing of cause and prejudice. See Ford v. United States, 983 F.2d 897, 898 (8th Cir. 1993) (per curiam). Thompson has made no such showing.

We rejected on direct appeal Thompson's claim that the district court arbitrarily determined she was responsible for 125 marijuana plants: we expressly found that the district court's numerical determination was correct. Curtis, 965 F.2d at 615-16. This precludes Thompson's claim that the district court failed to comply with Rule 32(c) (3) (D). See United States v. Fetlow, 21 F.3d 243, 249 (8th Cir. 1994) (Rule 32(c) (3) (D) satisfied if sentencing judge's comments allow appellate court to determine basis for sentencing court's findings).

The judgment is affirmed.

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The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa