United States v. Shelton ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6602
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWIGHT ROLLAND SHELTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern Dis-
trict of West Virginia, at Beckley. Elizabeth V. Hallanan, Senior
District Judge. (CR-92-149, CA-96-424-5)
Submitted: August 14, 1997 Decided: August 25, 1997
Before NIEMEYER, Circuit Judge, and BUTZNER and PHILLIPS, Senior
Circuit Judges.
Dismissed by unpublished per curiam opinion.
Dwight Rolland Shelton, Jr., Appellant Pro Se. Michael Lee Keller,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court's order denying his motion
filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). We have
reviewed the record and the district court's opinion accepting the
recommendation of the magistrate judge and find no reversible
error. Accordingly, we deny a certificate of appealability and dis-
miss substantially on the reasoning of the district court. United
States v. Shelton, Nos. CR-92-149; CA-96-424-5 (S.D.W. Va. Mar. 18,
1997).
In addition, Appellant attempts to assert a claim raised for
the first time in his objections to the magistrate judge's report
and recommendation, contending that the district court erred in
imposing a sentence for "crack" cocaine when Appellant pled guilty
to a powder cocaine offense. Appellant's claim was not raised in
his § 2255 motion, and he never made a motion to amend his initial
filing. In any event, the claim is factually unsupported in the
record. Further, nonconstitutional claims that could have been
raised on appeal, but were not, may not be asserted in collateral
proceedings. See Stone v. Powell, 428 U.S. 465, 477 n.10 (1976);
United States v. Emanuel, 869 F.2d 795, 796 (4th Cir. 1989). A
district court's technical application of the sentencing guidelines
is a nonconstitutional claim. See United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). Because Appellant's claim alleges noncon-
stitutional error and could properly have been raised on appeal,
his claim has been waived.
2
Accordingly, we deny a certificate of appealability and dis-
miss the appeal. 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.
DISMISSED
3