United States v. Mansour W. Saikaly

BATCHELDER, Circuit Judge,

concurring in part, dissenting in part.

I concur in part III.A of the majority’s holding, affirming the district court’s enhancement of Saikaly’s sentence pursuant to U.S.S.G. § 2Dl.l(b)(l). For the reasons that follow, however, I dissent from parts III.B and III.C, which remand to the district court the issues concerning the quantity of drugs attributed to Saikaly and his criminal history category.

As the majority states, Saikaly raised “various challenges” to his conviction on direct appeal in 1995. To be more precise, Saikaly assigned as error in the district court: (1) the failure to suppress evidence seized in violation of the “knock and announce” rule; (2) the violation of his Sixth Amendment right to a speedy trial; (3) the failure to give a multiple conspiracy jury instruction; (4) insufficiency of the evidence to support conviction on the conspiracy charge; (5) insufficiency of the evidence to support conviction on the firearm charges; and (6) the admission of certain physical evidence seized in New York when he was arrested on unrelated charges. See United States v. Ross, 53 F.3d 332 , 1995 WL 253183 (6th Cir.1995) (unpublished). After his unsuccessful appeal, Saikaly filed a § 2255 motion, followed by a supplemental § 2255 motion, in which he claimed that: (1) his § 924(c) conviction was invalid under Bailey; (2) he was sentenced improperly as an armed career criminal under § 924(e)(2); (3) evidence seized in New York during an unrelated arrest was improperly admitted at trial; and (4) his counsel was ineffective at both the trial and sentencing stages because counsel failed to move for suppression of evidence seized in New York in violation of his Fourth Amendment rights and failed to object to the determination in the pre-sentence report that Saikaly should be sentenced as an armed career offender. Saikaly prevailed in the district court on the Bailey claim and on the claim that his counsel had been ineffective in failing to object to the pre-sentence report’s determination that he was an armed career offender, but was denied relief on the remaining claims. The § 2255 motion currently before us on appeal followed. In it, Saikaly challenges the quantity of drugs attributed to him for purposes of sentencing and the criminal history category established pursuant to the Sentencing Guidelines.

We will not review on appeal claims presented in § 2255 habeas proceedings that were not presented previously on direct appeal. See Chandler v. Jones, 813 F.2d 773, 777 (6th Cir.1987) (“It is a well-established principle of appellate review that appellate courts do not address claims not properly presented below.... [T]his court relie[s] on this principle in rejecting attempts by habeas petitioners to assert new claims on appeal not presented in their petition or proceedings below.”). See also United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992) (per curiam) (holding that non-constitutional claims that could have been raised on direct appeal may not be asserted in a collateral proceeding). The issues regarding the quantity of drugs attributed to Saikaly and the guideline calculation of his criminal history category were cognizable on direct appeal. Nonetheless, neither in his direct appeal nor in his original or supplemental § 2255 motions did Saikaly ever assign error to the district court’s decision concerning those matters. In fact, Saikaly first raised the issue after the government filed its response to Saikaly’s § 2255 petition. Because Saikaly failed to preserve the issues for review, they are not properly before *374 this Court. 1

For the foregoing reasons, I dissent.

. The majority opinion inaccurately claims “the Dissent's conclusion is that these issues were not contained in Saikaly's § 2255 habe-as petition and therefore have not been preserved for appellate review.” This is not the basis for this dissenting opinion. It is the majority's attempt to characterize Saikaly’s challenges as being directed solely to "the 'new' presentence report” to avoid finding a procedural default that is the basis for this dissent. Saikaly’s original sentence was based, inter alia, upon two factual findings: (1) that the amount of cocaine allocated to him fell within the range of 5 to 15 kilograms, and (2) that his criminal history placed him at Category V. Therefore, if Saikaly disputed the accuracy of either of those findings, it was incumbent upon him to challenge them first by objecting to the presentence investigation report and then in his direct appeal. His failure to preserve these issues has now resulted in a procedural default, and it is improper for this Court to do as the majority has done here and consider his defaulted arguments on appeal.