David F. Klingenhofer, Plaintiff-appellant, v. United States of America, Defendant-appellee, 56 F.3d 71 (9th Cir. 1995)Annotate this Case
Before: WALLACE, Chief Judge, HUG and NOONAN, Circuit Judges.
Federal prisoner David F. Klingenhofer appeals pro se the district court's denial of his motion brought under 28 U.S.C. § 2255 to correct the sentence imposed upon him for receiving stolen property (18 U.S.C. § 641) and engaging in a monetary transaction in property derived from unlawful activity (18 U.S.C. § 1957). We affirm.
Klingenhofer contends the district court erred by enhancing his offense level by two points under U.S.S.G. Sec. 2S1.2(b) (1) (B) for his knowledge that the funds were the product of unlawful activity because this enhancement constitutes double counting for the same conduct penalized in 18 U.S.C. § 1957.
A petitioner may not raise nonconstitutional sentencing errors in a section 2255 motion unless he objects contemporaneously or on direct appeal. United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995). Because Klingenhofer did not object to this portion of the presentence report or otherwise challenge the district court's determination of his offense level at sentencing, his challenge to his sentence may not be raised in a section 2255 motion. See Schlesinger, 49 F.3d at 485. Moreover, Klingenhofer failed to raise this issue in his section 2255 motion before the district court, arguing instead that the criminal information was duplicitous/multiplicitious. He has abandoned that argument on appeal by failing to make any argument concerning this in his appellate brief. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).