United States v. West

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 01-6045 PRESTON WEST, Defendant-Appellant.  Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CR-97-175-S, CA-00-3521-S) Submitted: February 16, 2001 Decided: March 2, 2001 Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. COUNSEL Preston West, Appellant Pro Se. Lynne Anne Battaglia, United States Attorney, Robert Reeves Harding, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. WEST OPINION PER CURIAM: Preston West appeals the district court’s order denying and dis- missing his 28 U.S.C.A. § 2255 (West Supp. 2000) motion, and deny- ing his Fed. R. Civ. P. 59(e) motion to alter or amend judgment. The district court granted West a certificate of appealability, and we affirm. On appeal, West asserts that his conviction and sentence should be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000). He is foreclosed from raising this claim for the first time in a § 2255 action, unless he can demonstrate cause and prejudice to excuse his failure to raise this constitutional claim on direct appeal, or that he is actually innocent. See United States v. Frady, 456 U.S. 152, 167-68 (1982). West does not assert that he is actually innocent of the crimes for which he was convicted. Even if we find cause for West’s failure to assert the claim on appeal, in light of our decision in United States v. White, ___ F.3d ___, 2001 WL 87453 (4th Cir. Feb. 1, 2001) (No. 99-4578), he cannot show actual prejudice, since the sentence imposed does not exceed the total punishment mandated by the sen- tencing guidelines. See U.S. Sentencing Guidelines Manual § 5G1.2(d) (1998). Insofar as West seeks to appeal from the district court’s order denying his Fed. R. Civ. P. 59(e) motion to alter or amend judgment, we have reviewed the record and the district court’s opinion and find no reversible error. 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. AFFIRMED