UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40254
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID KEITH SPIGNER,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Texas
(6:95-CV-566)
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December 16, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
David Spigner, #03420-078, filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct sentence by a person in
federal custody. To the extent that Spigner requires a certificate
of appealability to appeal the denial of his motion, it is GRANTED.
*
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opinion should not be published and is not precedent except under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.
With respect to Spigner’s claim that he received ineffective
assistance of counsel because his counsel failed to obtain to the
amount of crack cocaine attributed to him for sentencing purposes,
Spigner has not demonstrated any deficient performance on counsel’s
part. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). With
respect to the other claims of ineffective assistance of counsel
that Spigner raised for the first time on appeal, Spigner has not
established plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); United States
v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc) (the
plain error standard), cert. denied, 115 S. Ct. 1266 (1995).
This court has rejected equal protection challenges to the
constitutionality of the sentencing guidelines for crack offenses.
See United States v. Watson, 953 F.2d 895, 897-98 (5th Cir.), cert.
denied, 504 U.S. 928 (1992).
Finally, we find Spigner’s Commerce Clause challenge to 21
U.S.C. § 860 is devoid of merit. See United States v. Lopez, 115
S. Ct. 1624, 1630 (1995); United States v. Gallo, 927 F.2d 815, 823
(5th Cir. 1991).
AFFIRMED.
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