UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50073
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEPHEN BOGDON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(88-CR-120)
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July 31, 1995
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Stephen Bogdon, pro se, appeals from the denial of 28 U.S.C.
§ 2255 relief. We AFFIRM.
I.
Bogdon entered a guilty plea for conspiracy to distribute
methamphetamine, and was sentenced, inter alia, to 240 months
imprisonment. Our court affirmed his conviction on direct appeal.
United States v. Bogdon, No. 89-1446 (5th Cir. November 22, 1989)
(unpublished). Bogdon moved to vacate his sentence under 28 U.S.C.
1
Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that rule, the court has determined that this opinion
should not be published.
§ 2255, claiming improper application of the Sentencing Guidelines,
ineffective assistance of counsel, and, in a supplemental motion,
that the Sentencing Commission exceeded its statutory authority in
including conspiracy within the ambit of "controlled substance
offenses". The district court adopted the report and
recommendation of the magistrate judge, and denied Bogdon's motion.
II.
A.
Bogdon claims he is entitled to relief on the basis that the
court applied improperly the career offender provision of the
Sentencing Guidelines, § 4B1.2, to enhance his sentence. The
section was applied to Bogdon's prior conviction for possession of
over 20 grams of marijuana. Relying on our court's holding in
United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992),
Bogdon claims that a simple possession offense is not a "drug
trafficking offense" within the meaning of the guidelines.
It goes without saying that § 2255 relief is reserved for
constitutional violations and for "a narrow range of injuries that
could not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice". United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Accordingly, this claim
is not cognizable under § 2255. "A district court's technical
application of the Guidelines does not give rise to a
constitutional issue." Id.
Furthermore, even assuming Bogdon could show cause for his
failure to raise this issue on direct appeal, he cannot show "a
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complete miscarriage of justice". Gaitan, on which Bogdon relies,
concerned the 1989 Sentencing Guidelines, wherein § 4B1.2 was
amended to eliminate listed offenses and phrases such as
"substantially similar [to a listed offense]". Gaitan, 954 F.2d at
1008-09 n.7. The 1989 guidelines did not become effective until
November 1, 1989. Id. Bogdon was sentenced on May 3, 1989, under
the 1988 guidelines.2 The application of the 1988 guidelines, to
which Gaitan does not apply, does not give rise to a complete
miscarriage of justice. See United States v. Towe, 26 F.3d 614,
616 (5th Cir. 1994). Accordingly, Bogdon is not entitled to relief
on this ground.
B.
Bogdon also claims relief based on United States v.
Bellazerius, 24 F.3d 698, 700-02 (5th Cir.), cert. denied, 115 S.
Ct. 375 (1994), which held that the Sentencing Commission exceeded
its authority under 28 U.S.C. § 994(h) in applying the career
offender guideline to defendants (like Bogdon) convicted only of
conspiracy offenses. Bogdon urges that Bellazerius entitles him to
relief because the sentencing court applied § 4B1.2 to his
2
Because the 1989 guideline differs from the 1988 version,
Bogdon's ineffective assistance claim, based on his attorney's
failure to object to the district court's application of that
guideline, fails. Bogdon must demonstrate, inter alia, that his
attorney's conduct was objectively unreasonable in light of the law
in effect at the time of trial. Strickland v. Washington, 466 U.S.
668, 689 (1984). Under the 1988 guidelines, the sentencing court
could consider listed offenses and "substantially similar"
offenses. Given this leeway, Bogdon's attorney was not
constitutionally ineffective for failing to object. Nor was he
constitutionally ineffective for failing to anticipate our holding
in Gaitan. See Morse v. Texas, 691 F.2d 770, 772 n.2 (5th Cir.
1982).
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conspiracy conviction. Our court recently addressed this issue,
and held specifically that such a claim is not cognizable under §
2255. United States v. Williams, No. 94-50329 (5th Cir. March 27,
1995) (unpublished).3
III.
For the foregoing reasons, the judgement is
AFFIRMED.
3
Bogdon also claims ineffective assistance of counsel because
his attorney did not object to the sentencing court's application
of the career offender guideline to his conspiracy conviction.
Bogdon did not raise this claim in the district court; we will not
review it. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
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