United States v. JEREZ ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20735
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDIE BENITO JEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA-H-95-1471
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June 20, 1996
Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Freddie Benito Jerez's motion for leave to proceed in forma
pauperis (IFP) is DENIED.
Jerez appeals the denials of his motions for relief pursuant
to 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2). Jerez contends
that his conviction violated double jeopardy; that the Government
withheld information material to his sentencing; that 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that this opinion should not be published and is not precedent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. 95-20735
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district court should have retroactively applied amendments to
the sentencing guidelines regarding the separation of drugs from
other substances to calculate drug quantities and improper
Government conduct in increasing the drug quantities defendants
purchase; that he was sentenced on materially inaccurate
information; that the district court improperly adjusted his
offense level upward for his earlier failure to appear; that the
district court violated FED. R. CRIM. P. 32 at sentencing; and
that he received ineffective assistance of counsel.
Jerez's conviction did not violate double jeopardy. The
funds forfeited in an earlier proceeding ($112,000) were to be
used to purchase the marijuana supplied by the Government.
United States v. Tilley, 18 F.3d 295, 299 (5th Cir.), cert.
denied, 115 S. Ct. 573, 574 (1994). Jerez cannot demonstrate
that counsel was ineffective for failing to contend that his
conviction violated double jeopardy. Strickland v. Washington,
466 U.S. 668, 687 (1984).
We determined on direct appeal that Jerez was not sentenced
on the basis of materially inaccurate information. We will not
reconsider that issue now. United States v. Santiago, 993 F.2d
504, 506 & n.4 (5th Cir. 1993). The denial of Jerez's § 3582
motion based on amendment 484 was not an abuse of discretion;
Jerez has not shown that the district court erred by basing his
sentence on 247 pounds of marijuana. See United States v. Shaw,
30 F.3d 26, 28 (5th Cir. 1994). Because Jerez's arguments
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regarding the weight of marijuana on which his sentence was based
are unconvincing, his contention that the Government withheld
material information from him also is unconvincing. See Cordova
v. Collins, 953 F.2d 167, 171 (5th Cir.), cert. denied, 502 U.S.
1067 (1992).
Amendment 486 to the guidelines is not among those
amendments given retroactive effect. U.S.S.G. § 1B1.10(c).
Jerez's argument that he should receive a reduction in his
sentence because the Government induced him to purchase
additional marijuana at a reduced price is unavailing.
The district court did not violate Jerez's plea agreement by
adjusting his offense level for obstruction of justice. The plea
agreement said nothing about a failure-to-appear charge. The
discussion at rearraignment indicated that he would not be
indicted for failure to appear; there was no indication that the
parties agreed that failure to appear could not be considered in
sentencing. See United States v. Ashburn, 38 F.3d 803, 808 (5th
Cir. 1994)(en banc), cert. denied, 115 S. Ct. 1969 (1995).
Because Jerez's obstruction-of-justice contention lacks merit,
Jerez cannot demonstrate that he received ineffective assistance
of counsel because counsel did not raise the contention.
Jerez's contention regarding FED. R. CRIM. P. 32 is a non-
constitutional argument that could have been raised on direct
appeal. Jerez does not indicate that a manifest miscarriage of
justice will result should we decline to consider his contention.
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His contention is outside the scope of a § 2255 motion. United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Because
Jerez's contentions regarding the weight of the marijuana on
which he was sentenced are unavailing, his contention that he
received ineffective assistance of counsel because counsel failed
to ensure compliance with Rule 32 also is unavailing.
APPEAL DISMISSED. See 5TH CIR. R. 42.2.