Jorge Antonio Lazo v. United States , 991 F.2d 801 ( 1993 )

991 F.2d 801

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
Jorge Antonio LAZO, Appellant,
v.
UNITED STATES of AMERICA, Appellee.

No. 92-3551.

United States Court of Appeals,
Eighth Circuit.

Submitted: April 6, 1993.
Filed: April 9, 1993.

Before FAGG, BEAM, and HANSEN, Circuit Judges.

PER CURIAM.

1

Jorge Antonio Lazo appeals from the district court's1 denial of his 28 U.S.C. § 2255 motion. Lazo argues that the court erred in holding his 136-month sentence did not violate his plea agreement and in denying his motion without an evidentiary hearing.

2

"A prisoner is entitled to an evidentiary hearing on a section 2255 motion unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Voytick v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985). Here, an evidentiary hearing was not required because the record conclusively shows that there was no violation of the plea agreement. The plea agreement stated that the parties understood that the court was not bound by the agreement and was free to impose the maximum penalties as provided by law. The transcript of Lazo's change of plea hearing shows that Lazo agreed that he wanted the court to accept the agreement and that the court informed Lazo that it was not bound by the agreement and it had the authority to sentence Lazo more severely than was anticipated under the agreement or recommended by the attorneys. Lazo responded that he understood. Because Lazo's claim that the government used information provided by him to increase his sentencing level in violation of the plea agreement was not presented to the district court, it is not properly before us, and we decline to consider it. See Glick v. Walker, 834 F.2d 709, 711 (8th Cir. 1987).

3

Accordingly, we affirm.

1

The Honorable Rodney S. Webb, United States District Judge for the District of North Dakota