IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50079
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO NEVAREZ-BURCIAGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-91-CR-303
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February 18, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Rogelio Nevarez-Burciaga appeals from a denial of
his motion to vacate, set aside or correct sentence under 28
U.S.C. § 2255. Appellant’s claims concerning the district
court’s technical application of the Sentencing Guidelines do not
give rise to a constitutional claim. See United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Since appellant did
not raise these issues on direct appeal, they may not be raised
in a collateral proceeding. See United States v. Capua, 656 F.2d
*
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that this opinion should not be published and is not precedent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. 96-50079
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1033, 1037 (5th Cir. 1981). Appellant did not receive
ineffective assistance of counsel because he did not show
prejudice arising from the failure to raise these issues on
direct appeal. See Strickland v. Washington, 466 U.S. 6687, 667
(1984).
Nevarez-Burciaga filed a motion to strike appellee’s brief
for being untimely. The record was not filed until September 11,
1996. The Government was sent a briefing notice on September 12,
1996. The Government’s brief was filed 33 days later on October
15, 1996. See Fed. R. App. P. 31(a); 5th Cir. R. 31 I.O.P. The
motion is DENIED.
AFFIRMED.