IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50943
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT WADE TOWNSEND,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-89-CR-87-8
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January 28, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Robert Wade Townsend argues that the district court abused
its discretion in ruling on his 18 U.S.C. § 3582(c)(2) motion
without reconsidering Townsend’s relevant conduct in light of the
amendment to U.S.S.G. § 2D1.1.
We have reviewed the record, including the transcript of the
hearing held on Townsend’s motion for reduction, and the briefs
of the parties and hold that the district court did not abuse its
*
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that this opinion should not be published and is not precedent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. 95-50943
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discretion in determining that Townsend should be held
accountable for five pounds of methamphetamine and in reducing
Townsend’s sentence based on that quantity of drugs.
Townsend argues for the first time in his reply brief that
the expert’s calculation of the laboratory’s capacity was merely
a guess based on assumptions. He also argues for the first time
that the Government is procedurally barred from contesting a
probation officer’s calculation of his offense level based on the
actual amount of methamphetamine seized from a laboratory.
Issues raised initially in a reply brief are not subject to
appellate review. United States v. Prince, 868 F.2d 1379, 1386
(5th Cir.), cert. denied, 493 U.S. 932 (1989).
Townsend argues that the district court’s imposition of an
eight-year term of supervised release at the initial sentencing
violated the Ex Post Facto Clause. This issue does not arise out
of the amendment to § 2D1.1 and, thus, it cannot not be properly
raised in a § 3582(c)(2) motion. See United States v. Shaw, 30
F.3d 26, 29 (5th Cir. 1994).
Townsend argues that his appointed counsel was ineffective
in connection with the § 3582(c)(2) proceedings. Townsend was
not constitutionally or statutorily entitled to counsel during
the § 3582(c) proceedings. See United States v. Whitebird, 55
F.3d 1007, 1010-11 (5th Cir. 1995). Therefore, he cannot claim
that he received ineffective assistance of counsel in those
proceeding. See Coleman v. Thompson, 501 U.S. 722, 752 (1991);
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Irving v. Hargett, 59 F.3d 23, 26 (5th Cir. 1995), cert. denied,
116 S. Ct. 929 (1996).
Because Townsend’s ineffective-assistance-of-counsel claim
does not raise a constitutional issue, the court need not
determine whether Townsend would be entitled to file a successive
28 U.S.C. § 2255 motion to raise this claim.
AFFIRMED.