Frank Wayne Johnson v. United States

Federal prisoner Frank Wayne Johnson appeals from the district court’s denial of his 28 U.S.C. § 2255 petition challenging his sentence for possession of methamphetamine with an intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). He also claims ineffective assistance of counsel.

In 1993, Johnson was sentenced to 151 months imprisonment to be followed by 60 months of supervised release under the Sentencing Guideline range for D-methamphetamine. U.S. Sentencing Guidelines Manual § 2D1.1. This was prior to the elimination of any distinction between D and L-methamphetamine in sentencing. See U.S. Sentencing Guidelines Manual § 2D1.1 (1995). He now claims he should have been sentenced for possession of L-methamphetamine.

There is no merit to Johnson’s substantive claim that he should have been sentenced under the lower guideline range for L-methamphetamine. Neither he nor his counsel, at trial, sentencing or on appeal, ever raised an issue with respect to the type of methamphetamine involved in the offense. A petitioner may not collaterally attack a sentence under § 2255 if he did not challenge it at sentencing or on a direct appeal, because the government does not bear the…