UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 96-50252
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE O. NYATENG,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(No. MO-95-CA-020)
_________________________________________________________________
November 5, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
George O. Nyateng appeals from the denial of his § 2255 motion
to vacate, set aside, or reduce his sentence for conspiracy to
commit mail fraud. Needless to say, § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of
issues that could not have been raised on direct appeal. E.g.,
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
Nyateng contends that the district court erroneously applied
the sentencing guidelines by taking into account an “invalid”
*
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that this opinion should not be published and is not precedent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.
conviction. Application of the guidelines is not a constitutional
issue and could have been raised on direct appeal had Nyateng not
waived his right to appeal in his plea agreement. Id. at 368.
Even if this issue could be raised, excluding the conviction would
not alter Nyateng’s sentence, because he was already in Category I,
the lowest possible criminal history category.
Nyateng also claims that the district court breached the plea
agreement because the court did not give effect to the Government’s
§ 5K1.1 recommendation for a downward departure. Again, assuming
this issue can be raised in a § 2255 proceeding, the district court
was not a party to the plea agreement; accordingly, it was not
bound by its terms. See United States v. Woods, 907 F.2d 1540,
1542 (5th Cir. 1990), cert. denied, 498 U.S. 1070 (1991).
Finally, Nyateng contends that he was given ineffective
assistance of counsel because his attorney did not object to
consideration of the “invalid” conviction, failed to object to the
district court’s denial of the Government’s § 5K1.1 motion, and
failed to perfect a direct appeal. To prevail on this ineffective
assistance of counsel claim, Nyateng must show that, but for
deficient performance, his sentence would have been significantly
less harsh. See Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.
1993). As noted, Nyateng was in criminal history Category I, so
the exclusion of his prior conviction would not have affected his
sentence. In addition, his counsel urged the court to grant the
Government’s motion; moreover, Nyateng indicated that he understood
that the district court was not bound by the terms of his plea
agreement. Finally, Nyateng waived his right to appeal in his plea
agreement; consequently, a direct appeal would have been meritless.
Nyateng’s counsel was not deficient for failing to raise a
meritless claim.
In sum, Nyateng’s motion for oral argument is DENIED and the
denial of his § 2255 motion is AFFIRMED.