IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50496
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS LIMONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-97-CV-34
USDC No. DR-92-CR-80-1
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August 4, 1999
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.
PER CURIAM:*
Santos Limones, federal prisoner # 63031-080, appeals the
district court’s denial of his motion to vacate sentence pursuant
to 28 U.S.C. § 2255. Limones contends that the district court
erred in refusing to consider his objections to the magistrate
judge’s report and recommendation, that the presentence
investigation report contained unreliable information, and that
his counsel was ineffective at sentencing and on appeal for
failing to seek a minimal- or minor-role reduction under U.S.S.G.
*
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that this opinion should not be published and is not precedent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.
§ 3B1.2 and failed to challenge the sentencing court’s use of 94
kilograms of cocaine for calculating the base offense level.
Limones has not provided an affidavit asserting the date on
which he mailed his objections to the magistrate judge’s report.
However, even assuming that he did mail those objections before
the day they were due (which would render them timely filed, see
Thompson v. Rasberry, 993 F.2d 513, 515 (5th Cir. 1993)), the
error of the district court was harmless because Limones merely
reurged the legal arguments he raised in his original petition
and offered no new factual allegations that were supported. See
Smith v. Collins, 964 F.2d 483, 485 (5th Cir. 1992).
Limones’s challenge to the inaccuracies of the presentence
investigation report is not properly before this court. The
district court did not grant a certificate of appealability (COA)
on this issue and Limones did not request that this court issue
COA. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.
1997); cf. United States v. Kinder, 150 F.3d 429, 431 (5th Cir.
1998).
Limones’s assertions that his counsel rendered ineffective
assistance for failing to challenge various issues at sentencing
are the issues upon which the district court granted COA.
However, Limones has not shown that he is entitled to relief on
these grounds. The trial testimony showed that Limones was more
than a mere courier or “mule” and that he had been involved in
conversations regarding the drug transactions. Despite his
assertions that the drug quantity used for sentencing was
unreliable, Limones has offered no evidence to controvert the
No. 98-50496
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trial testimony of one shipment. Although a government witness
testified that the agreement to sell another shipment and the
actual amount of cocaine delivered were different, this
difference involved only one kilogram and did not affect the base
offense level in the Sentencing Guidelines. Limones’s attorney’s
failure to request the reduction or to challenge the drug
quantity does not constitute deficient performance. See
Strickland v. Washington, 466 U.S. 668, 689-94 (1984); Spriggs v.
Collins, 993 F.2d 85, 88-89 (5th Cir. 1993); Mendiola v. Estelle,
635 F.2d 487, 491 (5th Cir. Unit A 1981)(counsel’s refusal to
advance a meritless objection does not constitute ineffective
assistance). The district court’s denial of relief is therefore
AFFIRMED.