United States v. James J. McCarthy

26 F.3d 134 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. James J. McCARTHY, Defendant-Appellant. No. 93-50662. United States Court of Appeals, Ninth Circuit. Submitted May 24, 1994. * Decided June 9, 1994. Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM ** 2 James J. McCarthy, a federal prisoner, appeals pro se the district court's denial of his motion to correct an illegal sentence. We have jurisdiction under 28 U.S.C. Secs. 1291 , 2255, and we affirm. 3 McCarthy pleaded guilty to conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846 . On November 21, 1988, the district court sentenced him to eight years imprisonment and alternatively, "if the Sentencing Guidelines are found constitutional," to ninety-seven months imprisonment and five years supervised release. McCarthy did not file a direct appeal. On May 4, 1989, he filed a 28 U.S.C. Sec. 2255 motion, which…