United States v. Roberts

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50882 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY ROBERTS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-95-CV-294-SS USDC No. A-94-CR-72-4-SS --------------------

August 31, 1999

Before POLITZ, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Timothy Roberts, federal prisoner # 60934-080, filed this

pro se appeal of the district court’s denial of his motion to

vacate, set aside, or correct his sentence under 28 U.S.C.

§ 2255.

Roberts’ motions to amend the district court’s order and for

discovery are DENIED.

Roberts argues that he received ineffective assistance from

his trial counsel, Terry Davis, in two respects. First, Roberts

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-50882 -2-

contends that Davis should have raised the issue of whether the

methamphetamine attributed to him for sentencing purposes was d-

methamphetamine or l-methamphetamine, substances that are treated

differently in the version of the Sentencing Guidelines under

which Roberts was sentenced. Roberts has failed to show that he

was prejudiced by any omission of his counsel. See Strickland v.

Washington, 466 U.S. 668, 694 (1984); United States v. Acklen, 47

F.3d 739, 742 (5th Cir. 1995).

Roberts also argues that he received ineffective assistance

from his counsel because his counsel failed to file a notice of

appeal. The district court’s finding that Roberts waived his

right to appeal is not clearly erroneous. See United States v.

Gipson, 985 F.2d 212, 216 (5th Cir. 1993); Meeks v. Cabana, 845

F.2d 1319, 1323 (5th Cir. 1988).

Accordingly, the judgment of the district court is AFFIRMED.

All outstandng motions are DENIED.