United States v. Posada-Munoz

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40410 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HENRY DE JESUS POSADA-MUNOZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. M-95-CV-173 - - - - - - - - - - March 20, 1997 Before GARWOOD, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Henry de Jesus Posada-Munoz, #64583-079, appeals from the

district court’s order dismissing his motion to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He

argues that the district court erred in calculating the quantity

of heroin used to determine his base offense level and that the

calculation of his sentence using the 1993 Sentencing Guidelines

constituted an ex post facto violation.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-40410 - 2 -

Posada’s challenge to the district court’s application of

the guidelines is not cognizable in a § 2255 motion because a

district court’s technical application of the Guidelines does not

give rise to a constitutional issue. See United States v.

Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Posada’s assertion

that the application of the 1993 version of the Guidelines

constitutes an ex post facto violation lacks a factual basis

since Posada’s sentence was calculated using the 1992 version of

the Guidelines.

For the first time on appeal, Posada asserts that the

indictment was fundamentally defective because the language of

the indictment failed to precisely track the language of the

statute. Posada’s assertion was not adequately briefed and is

thus deemed abandoned. See Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

AFFIRMED.