United States v. Pyron

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40084 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BILLY D. PYRON,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:95-CV-869 - - - - - - - - - - October 23, 1996 Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Billy D. Pyron appeals the denial of his 28 U.S.C. § 2255

motion. Pyron contends that his option contracts did not

constitute property; that his prepetition transfers of option

contracts were transactions conducted in the ordinary course of

business and therefore were exempt from the listing requirements

of the bankruptcy statutes; that his postpetition 24% interest in

a building did not constitute property as defined by 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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-40084 - 2 -

bankruptcy contest; that the district court’s instructions

regarding materiality and property definitions were erroneous;

and that, because his options did not constitute property and

were transferred in the ordinary course of business, he was

convicted on insufficient evidence.

Pyron’s contentions that his options and postpetition

interest in a building did not constitute property under the

bankruptcy statute and that the jury instructions were improper,

when considered independently from his insufficiency-of-the

evidence contention, are nonconstitutional arguments that could

have been raised on direct appeal. Those arguments are outside

the scope of § 2255. United States v. Vaughn, 955 F.2d 367, 368

(5th Cir. 1992).

We determined on Pyron’s direct appeal that his options were

property. United States v. Smithson, 49 F.3d 138, 144 (5th Cir.

1995). We will not revisit that holding in this § 2255 appeal.

United States v. Santiago, 993 F.2d 504, 506 & n.4 (5th Cir.

1993). Pyron cannot demonstrate plain error regarding his

contention, raised for the first time on appeal, that the

evidence was insufficient to support his conviction because he

transferred his options in the regular course of business; that

contention would have been subject to a procedural bar had Pyron

raised it in the district court. See Douglass v. United Servs.

Auto. Ass’n, 70 F.3d 1415, 1428 (5th Cir. 1996)(en banc); United

States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992). No. 96-40084 - 3 -

Finally, Pyron’s motion for release pending appeal is

DENIED.

APPEAL DISMISSED. 5TH CIR. R. 42.2.