IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60307
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EUGENE DAWSON,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Mississippi
(2:94-CV-167-D)
November 15, 1996
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
PER CURIAM:
David Eugene Dawson appeals the district court’s denial of his
motion pursuant to 28 U.S.C. § 2255. Dawson challenges the factual
basis supporting his guilty plea to aiding and abetting possession
with intent to distribute cocaine base. He argues that counsel was
ineffective for allowing him to plead guilty, failing to appeal the
sufficiency of the evidence, and obtaining two trial continuances.
*
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this opinion should not be published and is not precedent except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.
He also challenged “the unconstitutionality of the sentencing
disparity between crack cocaine and powder cocaine.” We find that
the record provides ample factual basis to support Dawson’s guilty
plea. United States v. Pedroza, 78 F.3d 179, 183 (5th Cir. 1996);
United States v. Bright, 630 F.2d 804, 829 n.45 (5th Cir. 1980);
see Blackledge v. Allison, 431 U.S. 63, 74 (1977). Thus, counsel
was not ineffective for advising Dawson to plead guilty or failing
to appeal the sufficiency of the evidence. Lockhart v. Fretwell,
506 U.S. 364, 372 (1993). The record also reflects that at the
plea hearing Dawson was correctly advised by the court of the
statutory sentencing range, that the sentencing guidelines applied,
and the guideline range could not be known until the PSR had been
completed. Dawson’s voluntary guilty plea waived his other
allegations of ineffectiveness. Smith v. Estelle, 711 F.2d 677,
682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984). Even
assuming his challenge to the disparity between crack and powder
cocaine sentences is not barred by his withdrawal of appeal after
having unsuccessfully raised that issue at sentencing, the claim is
clearly without merit. See, e.g., United States v. Flanagan, 87
F.3d 121 (5th Cir. 1996); United States v. Cherry, 50 F.3d 338,
342-44 (5th Cir. 1995). We AFFIRM the district court’s denial of
Dawson’s motion.
This Court has not yet determined whether a certificate of
appealability (“COA”) is required under the circumstances of this
appeal. See 28 U.S.C. § 2253. To the extent that a COA is
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required, we construe Dawson’s notice of appeal as an application
for a COA and DENY the motion.
AFFIRMED
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