IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50102
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO LUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-91-CR-003
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September 4, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Antonio Luna appeals the district court’s denial of his
motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255). Even assuming that Luna’s claims are not barred
by the plea agreement’s language preventing appeals or pursuit of
post-conviction relief, Luna’s arguments fail. The plea
agreement nowhere contains any promises of a specific sentencing
*
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that this opinion should not be published and is not precedent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. 96-50102
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range or of the quantity of drugs that would form the basis of
the sentence. Luna nowhere argues that the plea agreement
contained promises of more lenient sentencing. Luna supports his
understanding that a lesser quantity of drugs would be used at
sentencing only by reference to the language of a dismissed count
of the indictment, which is not binding upon the court. United
States v. Garcia, 902 F.2d 324, 326 (5th Cir. 1990).
Similarly, Luna supports his assertion that his counsel was
ineffective by asserting only the conclusional allegation that
counsel should have prevented the court from imposing a sentence
based upon a greater quantity of drugs than the quantity set
forth in the original indictment and that counsel should have
objected or appealed when the greater quantity was used. Such
conclusional arguments cannot form the basis of an ineffective
assistance of counsel claim. See United States v. Smith, 915
F.2d 959, 963 (5th Cir. 1990).
Luna’s motion to file a reply brief out of time is granted.
AFFIRMED.