IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60820
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD SANGS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:00-CV-45-S-B
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December 11, 2001
Before JOLLY, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Bernard Sangs, federal prisoner # 10671-042, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion. He
argues that his counsel was ineffective in that he did not
challenge at trial or on appeal the admissibility of the crack
cocaine which he alleges was “false evidence.” The record
indicates that the Government presented sufficient evidence to
establish that the seized substance was crack cocaine and that it
was properly handled. Sangs has not shown that he had any
evidence that counsel could have presented to show that the drug
*
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that this opinion should not be published and is not precedent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. 00-60820
-2-
tests conducted by the National Postal Forensic Laboratory were
incorrect or that the evidence was improperly handled. Counsel
is not ineffective for failing to make a legally meritless
argument. See United States v. Wilkes, 20 F.3d 651, 653 (5th
Cir. 1994).
Sangs argues that his counsel was ineffective in that he did
not conduct a pretrial investigation or interview potential
witnesses. Sangs raised this argument for the first time in his
traverse to the Government’s answer and did not file a motion for
permission to file an amended complaint as required by Fed. R.
Civ. P. 15. He does not assert that the district court abused
its discretion in not construing his traverse as a motion to
amend his 28 U.S.C. § 2255 motion. He has not shown that the
district court abused its discretion in refusing to consider the
new issue raised in his traverse. See United States v.
Cervantes, 132 F.3d 1106, 1111 (5th Cir. 1998).
Sangs argues that his counsel was ineffective in failing to
challenge the drug quantity involved in the offense in view of
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Sangs raised
this issue for the first time in a motion to amend his 28 U.S.C.
§ 2255 motion filed after the district court issued its final
judgment. Because this claim did not attack the denial of his 28
U.S.C. § 2255 motion, but raised a new claim attacking Sangs’
sentence, the district court did not err in construing Sangs’
motion to amend his motion as a successive 28 U.S.C. § 2255
motion and transferring it to this court for authorization. See
United States v. Rich, 141 F.3d 550, 551-53 (5th Cir. 1998).
No. 00-60820
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Sangs argues that his counsel was ineffective for failing to
challenge the district court’s increase in his offense level
under U.S.S.G. § 3C1.1 for obstruction of justice. The evidence
presented at trial indicates that Sangs sent two letters to
coconspirator, Antonio Johnson, offering him drugs and money in
an attempt to induce him to perjure himself at trial. Sangs also
perjured himself at the trial. Sangs’ trial counsel objected to
the increase but the district court denied the objections. He
has not shown that the issue would have been sufficiently
meritorious that counsel should have raised it on appeal. See
United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000).
Sangs argues that his counsel was ineffective in that he
failed to challenge the district court’s increase in his offense
level for his leadership role in the offense under U.S.S.G.
§ 3B1.1(a). The Presentence Report stated that the increase was
warranted because Sangs recruited Johnson to accept delivery of
packages containing controlled substances and that a large amount
of drugs were delivered to Sangs in a short period of time,
indicating that Sangs’ drug activity was extensive. Sangs’ trial
counsel objected to the increase, and the district court denied
the objection. Sangs has not shown that his appellate counsel
had any basis for challenging the increase on appeal.
See Phillips, 210 F.3d at 348.
Sangs has not shown that his trial or appellate counsel were
ineffective or that he was prejudiced by their alleged errors.
See Strickland v. Washington, 466 U.S. 668, 697 (1984).
Therefore, the district court’s judgment is AFFIRMED.