[T][U] United States v. Gallup

MEMORANDUM* Edward Gallup and others were charged and convicted of various criminal offenses stemming from their roles in operating a fraudulent health insurance scheme. We affirmed their convictions on direct appeal, United States v. O'Brien, 50 F.3d 751 (9th Cir. 1995), rejecting their contention that the district court erred by imposing a two-level vulnerable victim enhancement pursuant to U.S.S.G. § 3A1.1. Gallup thereafter filed this 28 U.S.C. § 2255 petition seeking review of other sentencing determinations, and raising double jeopardy and ineffective assistance of counsel claims. The district court denied relief. We affirm. Gallup raises various challenges to the district court's application of the sentencing guidelines. While there is disagreement whether these challenges were raised during the sentencing process, there is no dispute that none were raised on direct appeal. Nonconstitutional sentencing errors that have not been raised on direct appeal are deemed waived and cannot be reviewed by way of collateral proceedings. See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995). Accordingly, Gallup's sentencing challenges were properly rejected.