United States v. Lutcher

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-30833 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MELVIN LUTCHER,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 95-CA-423 - - - - - - - - - - May 17, 1996 Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

Melvin Lutcher moves for leave to appeal in forma pauperis

(IFP) the denial of his 28 U.S.C. § 2255 motion, arguing that

counsel was ineffective for failing to object to the district

court’s instructions regarding the burden of proof in a criminal

case and the use of extrinsic evidence, for failing to obtain a

laboratory report from the Government, and for failing to move

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 95-30833 - 2 -

for a judgment of acquittal based on entrapment or raise

entrapment as an issue on appeal; that the Government violated

the Fourth Amendment by not testing the cocaine at issue in his

case; that the Government engaged in outrageous conduct by using

government-owned cocaine to entrap Lutcher; that the district

court erred by failing to depart downward from his guideline

sentencing range; and that the Government manipulated the amount

of cocaine involved in his offense for sentencing purposes.

Lutcher raises his contentions of ineffective assistance

regarding the alleged failure of counsel to object to the

district court’s instructions for the first time on appeal. This

court determined the merits of Lutcher’s contentions against the

instructions themselves on direct appeal; Lutcher may not

relitigate those issues. United States v. Santiago, 993 F.2d

504, 506 & n.4 (5th Cir. 1993). Because this court has

determined the merits of Lutcher’s instruction contentions,

Lutcher cannot demonstrate prejudice from counsel’s alleged

deficiencies, see Strickland v. Washington, 466 U.S. 668, 687

(1984); he cannot show plain error. Highlands Ins. Co. v.

National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994),

cert. denied, 115 S. Ct. 903 (1995).

Lutcher can show no plain error regarding his Fourth

Amendment contention, which he raises for the first time on

appeal. The Fourth Amendment is designed to prohibit

unreasonable searches and seizures, see United States v. No. 95-30833 - 3 -

Martinez-Fuerte, 428 U.S. 543, 554 (1976); whether the Government

tested the cocaine after the seizure is unrelated to the seizure

itself.

Lutcher presents no legal basis for this court to find plain

error regarding counsel’s alleged failure to obtain a laboratory

report regarding the purity of cocaine. Drug purity is not an

element of possession with intent to distribute, United States v.

Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988); Lutcher

does not indicate how a report reflecting the purity of his

cocaine could have benefited the jury.

The evidence at trial was sufficient for the jury to find

that Lutcher was predisposed to trade in drugs. See United

States v. Mora, 994 F.2d 1129, 1137 (5th Cir.), cert. denied, 114

S. Ct. 417 (1993); United States v. Hudson, 982 F.2d 160, 162

(5th Cir.), cert. denied, 114 S. Ct. 100 (1993). Lutcher can

show no prejudice from counsel’s alleged failures to pursue a

judgment of acquittal based on entrapment or to raise entrapment

on appeal.

Lutcher raises his contention that the Government engaged in

outrageous conduct to entrap him is raised for the first time on

appeal. Had Lutcher raised the issue in the district court, it

would have been subject to a procedural bar, had the Government

wished to invoke the bar. See United States v. Drobny, 955 F.2d

990, 994-95 (5th Cir. 1992). No plain error results because the No. 95-30833 - 4 -

district court did not consider the possibility of outrageous

conduct.

“A district court’s technical application of the Guidelines

does not give rise to a constitutional issue.” United States v.

Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Lutcher cannot raise

his downward-departure contention for the first time in his

§ 2255 motion.

Assuming, arguendo, that sentencing manipulation is a viable

theory, See United States v. Washington, 44 F.3d 1271, 1279 (5th

Cir.), cert. denied, 115 S. Ct. 2011 (1995), the evidence

indicates that Lutcher was disposed to deal in large quantities

of drugs. Lutcher’s sentencing-manipulation contention is

unavailing.

Because Lutcher has not raised a nonfrivolous issue for

appeal, his motion for leave to proceed IFP is DENIED.

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