IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40084
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY D. PYRON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:95-CV-869
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October 23, 1996
Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Billy D. Pyron appeals the denial of his 28 U.S.C. § 2255
motion. Pyron contends that his option contracts did not
constitute property; that his prepetition transfers of option
contracts were transactions conducted in the ordinary course of
business and therefore were exempt from the listing requirements
of the bankruptcy statutes; that his postpetition 24% interest in
a building did not constitute property as defined by 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that this opinion should not be published and is not precedent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. 96-40084
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bankruptcy contest; that the district court’s instructions
regarding materiality and property definitions were erroneous;
and that, because his options did not constitute property and
were transferred in the ordinary course of business, he was
convicted on insufficient evidence.
Pyron’s contentions that his options and postpetition
interest in a building did not constitute property under the
bankruptcy statute and that the jury instructions were improper,
when considered independently from his insufficiency-of-the
evidence contention, are nonconstitutional arguments that could
have been raised on direct appeal. Those arguments are outside
the scope of § 2255. United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992).
We determined on Pyron’s direct appeal that his options were
property. United States v. Smithson, 49 F.3d 138, 144 (5th Cir.
1995). We will not revisit that holding in this § 2255 appeal.
United States v. Santiago, 993 F.2d 504, 506 & n.4 (5th Cir.
1993). Pyron cannot demonstrate plain error regarding his
contention, raised for the first time on appeal, that the
evidence was insufficient to support his conviction because he
transferred his options in the regular course of business; that
contention would have been subject to a procedural bar had Pyron
raised it in the district court. See Douglass v. United Servs.
Auto. Ass’n, 70 F.3d 1415, 1428 (5th Cir. 1996)(en banc); United
States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992).
No. 96-40084
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Finally, Pyron’s motion for release pending appeal is
DENIED.
APPEAL DISMISSED. 5TH CIR. R. 42.2.