989 F. 2d 502 - Owens v. United States
989 F2d 502 Owens v. United States
989 F.2d 502
Ted F. OWENS, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 92-2298.
United States Court of Appeals, Seventh Circuit.
Submitted March 4, 1993.*
Decided March 15, 1993.
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Before CUMMINGS, CUDAHY and MANION, Circuit Judges.
ORDER
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Ted F. Owens, serving a 70-month sentence for conspiring to possess cocaine with the intent to distribute it, appeals from the district court's denial of his motion under 28 U.S.C. § 2255. We affirm.
Owens contends that the district court deprived him of due process by failing to furnish advance notice of its intention to deny an adjustment for acceptance of responsibility based on a positive urinalysis test. See Burns v. United States, 111 S.Ct. 2182 (1991). Compare United States v. Thomas, 969 F.2d 352, 356 n. 2 (7th Cir.), cert. denied, 113 S.Ct. 274 (1992), with United States v. Adipietro, 1993 WL 9795, * 4 (8th Cir. Jan. 22, 1993); United States v. Canada, 960 F.2d 263, 266-67 (1st Cir.1992); United States v. McLean, 951 F.2d 1300, 1302 (D.C.Cir.1991), cert. denied, 112 S.Ct. 1775 (1992); United States v. Palmer, 946 F.2d 97, 100 (9th Cir.1991). Because Owens did not raise this contention on direct appeal before this court, it is waived unless he can show both cause for the procedural default and actual prejudice. United States v. Frady, 456 U.S. 152, 167-68 (1982); Norris v. United States, 687 F.2d 899, 903 (7th Cir.1982). Owens makes no such showing, so we are precluded from considering his contention here. The decision of the district court denying Owens' motion is
AFFIRMED.
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record