IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40410
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY DE JESUS POSADA-MUNOZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-95-CV-173
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March 20, 1997
Before GARWOOD, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Henry de Jesus Posada-Munoz, #64583-079, appeals from the
district court’s order dismissing his motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He
argues that the district court erred in calculating the quantity
of heroin used to determine his base offense level and that the
calculation of his sentence using the 1993 Sentencing Guidelines
constituted an ex post facto violation.
*
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that this opinion should not be published and is not precedent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. 96-40410
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Posada’s challenge to the district court’s application of
the guidelines is not cognizable in a § 2255 motion because a
district court’s technical application of the Guidelines does not
give rise to a constitutional issue. See United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Posada’s assertion
that the application of the 1993 version of the Guidelines
constitutes an ex post facto violation lacks a factual basis
since Posada’s sentence was calculated using the 1992 version of
the Guidelines.
For the first time on appeal, Posada asserts that the
indictment was fundamentally defective because the language of
the indictment failed to precisely track the language of the
statute. Posada’s assertion was not adequately briefed and is
thus deemed abandoned. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED.