United States v. Williams ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-7791
HAYWOOD WILLIAMS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CR-80-14-N, CA-95-957-2)
Submitted: February 7, 1996
Decided: February 29, 1996
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Haywood Williams, Jr., Appellant Pro Se. Janet S. Reincke, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Haywood Williams, Jr., appeals from district court orders denying
his 28 U.S.C. § 2255 (1988) motion and denying reconsideration
thereof. We affirm.
Regarding the substance of the § 2255 motion, Williams's claim
that his convictions under 21 U.S.C.A. §§ 846, 848 (West 1981 &
Supp. 1995) violate the Double Jeopardy Clause is frivolous. This
court vacated his § 846 conviction in a prior decision and properly left
the § 848 conviction undisturbed. United States v. Williams, No. 88-
7400, 1991 WL 107588 at **1 (4th Cir. June 21, 1991) (as amended
July 15, 1991), cert. denied, 502 U.S. 949 (1991); see also United
States v. Johnson, 54 F.3d 1150, 1163 (4th Cir.) (only lesser-included
offense should be vacated), cert. denied, 64 U.S.L.W. 3248 (U.S.
1995).
Williams's second claim, that the § 848 conviction cannot stand
because the § 846 violation served as a predicate offense is also merit-
less. The § 846 violation may serve as a predicate offense. United
States v. Heater, 63 F.3d 311, 318 (4th Cir. 1995), cert. denied, 64
U.S.L.W. 3485 (U.S. 1996).
Regarding the motion for reconsideration, Williams contended that
the district court misconstrued the motion as one under § 2255 rather
than one under Fed. R. Crim. P. 35. The district court properly con-
strued Williams's Fed. R. Crim. P. 35 motion as one under § 2255
because the only cognizable Rule 35 claim was frivolous and the
other claim was properly considered only under § 2255. United States
v. Pavlico, 961 F.2d 440, 443 (4th Cir.), cert. denied, 506 U.S. 848(1992). Williams's other allegations in his motion for reconsideration
regarded claims not raised in the § 2255 motion and were, therefore,
inappropriate on motion for reconsideration. See Collison v. Interna-
tional Chem. Workers Union, Local 217, 34 F.3d 233, 236 (4th Cir.
1994).
Therefore, we affirm the district court orders denying Williams's
§ 2255 motion and denying reconsideration of that order. We dis-
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pense 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
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