United States v. JEREZ

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-20735 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDDIE BENITO JEREZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CA-H-95-1471 - - - - - - - - - - June 20, 1996 Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*

Freddie Benito Jerez's motion for leave to proceed in forma

pauperis (IFP) is DENIED.

Jerez appeals the denials of his motions for relief pursuant

to 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2). Jerez contends

that his conviction violated double jeopardy; that the Government

withheld information material to his sentencing; that the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-20735 -2-

district court should have retroactively applied amendments to

the sentencing guidelines regarding the separation of drugs from

other substances to calculate drug quantities and improper

Government conduct in increasing the drug quantities defendants

purchase; that he was sentenced on materially inaccurate

information; that the district court improperly adjusted his

offense level upward for his earlier failure to appear; that the

district court violated FED. R. CRIM. P. 32 at sentencing; and

that he received ineffective assistance of counsel.

Jerez's conviction did not violate double jeopardy. The

funds forfeited in an earlier proceeding ($112,000) were to be

used to purchase the marijuana supplied by the Government.

United States v. Tilley, 18 F.3d 295, 299 (5th Cir.), cert.

denied, 115 S. Ct. 573, 574 (1994). Jerez cannot demonstrate

that counsel was ineffective for failing to contend that his

conviction violated double jeopardy. Strickland v. Washington,

466 U.S. 668, 687 (1984).

We determined on direct appeal that Jerez was not sentenced

on the basis of materially inaccurate information. We will not

reconsider that issue now. United States v. Santiago, 993 F.2d

504, 506 & n.4 (5th Cir. 1993). The denial of Jerez's § 3582

motion based on amendment 484 was not an abuse of discretion;

Jerez has not shown that the district court erred by basing his

sentence on 247 pounds of marijuana. See United States v. Shaw,

30 F.3d 26, 28 (5th Cir. 1994). Because Jerez's arguments No. 95-20735 -3-

regarding the weight of marijuana on which his sentence was based

are unconvincing, his contention that the Government withheld

material information from him also is unconvincing. See Cordova

v. Collins, 953 F.2d 167, 171 (5th Cir.), cert. denied, 502 U.S.

1067 (1992).

Amendment 486 to the guidelines is not among those

amendments given retroactive effect. U.S.S.G. § 1B1.10(c).

Jerez's argument that he should receive a reduction in his

sentence because the Government induced him to purchase

additional marijuana at a reduced price is unavailing.

The district court did not violate Jerez's plea agreement by

adjusting his offense level for obstruction of justice. The plea

agreement said nothing about a failure-to-appear charge. The

discussion at rearraignment indicated that he would not be

indicted for failure to appear; there was no indication that the

parties agreed that failure to appear could not be considered in

sentencing. See United States v. Ashburn, 38 F.3d 803, 808 (5th

Cir. 1994)(en banc), cert. denied, 115 S. Ct. 1969 (1995).

Because Jerez's obstruction-of-justice contention lacks merit,

Jerez cannot demonstrate that he received ineffective assistance

of counsel because counsel did not raise the contention.

Jerez's contention regarding FED. R. CRIM. P. 32 is a non-

constitutional argument that could have been raised on direct

appeal. Jerez does not indicate that a manifest miscarriage of

justice will result should we decline to consider his contention. No. 95-20735 -4-

His contention is outside the scope of a § 2255 motion. United

States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Because

Jerez's contentions regarding the weight of the marijuana on

which he was sentenced are unavailing, his contention that he

received ineffective assistance of counsel because counsel failed

to ensure compliance with Rule 32 also is unavailing.

APPEAL DISMISSED. See 5TH CIR. R. 42.2.