IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50764
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR FORMANN,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-96-CA-51
- - - - - - - - - -
November 4, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Federal prisoner (#17501-077) Arthur Formann has appealed
the denial, without an evidentiary hearing, of his motion to
vacate, 28 U.S.C. § 2255. We AFFIRM.
Formann is not entitled to relief on his claim that the
presentence report was disclosed to him less than 10 days prior
to sentencing, and that his counsel was ineffective for failing
to object to this and to correct alleged inaccuracies in the
presentence report. See United States v. Cervantes, 132 F.3d
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 97-50764
-2-
1106, 1109 (5th Cir. 1998); Strickland v. Washington, 466 U.S.
668, 687, 690 (1984).
Formann contends that he is entitled to relief on grounds
that his court-appointed counsel was ineffective in numerous
other respects. We have determined that the district court did
not err in denying relief relative to these claims.
Formann contends that the evidence was insufficient to
support his convictions. The court will not consider this claim
because the evidence was held to be sufficient upon his direct
appeal, United States v. Faulkner, 17 F.3d 751, 768-71 (5th Cir.
1994). See United States v. Kalish, 780 F.2d 506, 508 (5th Cir.
1986). Furthermore, Formann's claim that a government witness's
testimony lacked credibility is not a valid basis for relief from
a conviction. See United States v. Robles-Pantoja, 887 F.2d
1250, 1254-55 (5th Cir. 1989).
Formann contends that he is entitled to relief on grounds
that the trial court did not instruct the jury that materiality
of a false statement is an element of willfully overvaluing land
or property in violation of 18 U.S.C. § 1014. He relies on
United States v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997). The
Wells Court held, however, that "materiality of falsehood is
[not] an element of the crime of knowingly making a false
statement to a federally insured bank, 18 U.S.C. § 1014." 117 S.
Ct. at 924.
Formann contends that he should be resentenced to home
confinement, on authority of U.S.S.G. §§ 5H1.1 (age) and 5H1.4
No. 97-50764
-3-
(poor physical condition). This claim is not cognizable in a
§ 2255 proceeding. See Cervantes, 132 F.3d at 1109.
JUDGMENT AFFIRMED.