United States v. Rackstraw

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10318
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT CHRISTOPHER RACKSTRAW,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:94-CV-564-Y/4:92-CR-10-8
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April 16, 1996
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Christopher Rackstraw has appealed the denial of his
28 U.S.C. § 2255 motion. Rackstraw contends that he was the
victim of selective prosecution and entrapment by Government
officials. Rackstraw waived these nonjurisdictional issues by
pleading guilty. United States v. Sarmiento, 786 F.2d 665, 668
(5th Cir. 1986). Rackstraw contends that the sentencing scheme
for crack-cocaine violations violates his right to due process.
Rackstraw argues: (1) the sentencing scheme is racially disparate
*
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this opinion should not be published and is not precedent except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.
in effect; (2) differences in punishment for crack-cocaine and
powdered-cocaine offenses are irrational; and (3) the terms
"crack-cocaine" and "cocaine-base" are unconstitutionally vague.
Rackstraw also contends for the first time in his reply brief
that his sentence is unconstitutionally harsh. These issues have
been decided previously to the contrary. United States v.
Fisher, 22 F.3d 574, 579 (5th Cir.), cert. denied, 115 S. Ct. 529
(1994). Finally, Rackstraw contends that the district court
should not have considered relevant conduct in determining his
sentence and that the district court failed to make findings with
respect to similarity, regularity, and temporal proximity of his
prior acts. The district court’s technical application of the
sentencing guidelines does not give rise to a constitutional
issue and is not cognizable in a § 2255 proceeding. United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
This appeal is without arguable merit and thus frivolous.
Because the appeal is frivolous, it is DISMISSED. 5th Cir. R.
42.2. We caution Rackstraw that any additional frivolous appeals
filed by him or on his behalf will invite the imposition of
sanctions. To avoid sanctions, Rackstraw is further cautioned to
review any pending appeals to ensure that they do not raise
arguments that are frivolous because they have been previously
decided by this court.
APPEAL DISMISSED; SANCTION WARNING GIVEN.