United States v. West

5 F. App'x 192

Opinion

OPINION

PER CURIAM.

Preston West appeals the district court’s order denying and dismissing his 28 U.S.C.A. § 2255 (West Supp.2000) motion, and denying his Fed.R.Civ.P. 59(e) motion to alter or amend judgment. The district court granted West a certificate of appeal-ability, and we affirm.

On appeal, West asserts that his conviction and sentence should be vacated under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He is foreclosed from raising this claim for the first time in a § 2255 action, unless he can demonstrate cause and prejudice to excuse his failure to raise this constitutional claim on direct appeal, or that he is actually innocent. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). West does not assert that he is actually innocent of the crimes for which he was convicted. Even if we find cause for West’s failure to assert the claim on appeal, in light of our decision in United States v. White, 238 F.3d 537 (4th Cir.2001), he cannot show actual prejudice, since the sentence imposed does not exceed the total punishment mandated by the sentencing guidelines. See U.S. Sentencing Guidelines Manual § 5G1.2(d) (1998).

Insofar as West seeks to appeal from the district court’s order denying his Fed. R.Civ.P. 59(e) motion to alter or amend judgment, we have reviewed the record and the district court’s opinion and find no reversible error. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.