United States v. Messinger
Opinion of the Court
MEMORANDUM
Morris Messinger, Jr. appeals pro se the district court’s denial of his 28 U.S.C.
Messinger contends that he was improperly sentenced based on an amount of loss which was not pleaded and proved beyond a reasonable doubt. In making this argument, Messinger claims that the amount of loss is an element of his crime and therefore must be submitted to a jury and found beyond a reasonable doubt. This claim has no merit. The amount of loss is not an element of any of the numerous statutes under which Messinger was convicted. See 18 U.S.C. §§ 1341 and 1957(a); 15 U.S.C. §§ 77e and 77q. Even if loss amount were an element of any of his crimes, his sentence of 120 months is well within the combined statutory maximum of 100 years. See United States v. Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (stating that sentence stacking is a valid practice when there are multiple counts of conviction); see also United States v. Jordan, 256 F.3d 922, 934 (9th Cir. 2001) (stating that a statutory maximum sentence is not constrained by the Sentencing Guidelines).
Messinger also contends that his trial attorney rendered ineffective assistance by not calling particular witnesses. Because Messinger cannot show a reasonable probability that the testimony would have changed the result of his trial, the district court properly rejected this contention. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We do not reach Messinger’s remaining contentions, which were either not included in his section 2255 motion, not cognizable on collateral review, or not certified for appeal. See United States v. Allen, 157 F.3d 661, 667 (9th Cir. 1998); see also United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Reference
- Full Case Name
- United States v. Morris MESSINGER, Jr.
- Status
- Published