IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30313
Conference Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN J. CHISHOLM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 95-CA-20 (CR-92-41)
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August 24, 1995
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Brian J. Chisholm filed a motion to vacate, correct, or set
aside his sentence under 28 U.S.C. § 2255 alleging that the
Government breached the plea agreement; that the district court
erred in enhancing his sentence; and that the district court erred
in not giving Chisholm a one-point reduction for entering a timely
guilty plea in addition to the two-point reduction he received for
acceptance of responsibility.
*
Local Rule 47.5 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that this opinion should not be published.
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"[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be fulfilled."
Santobello v. New York, 404 U.S. 257, 262 (1971). "[I]n
determining whether the terms of the agreement have been violated,
[the court] must determine whether the government's conduct is
consistent with what is reasonably understood by the defendant when
entering a plea of guilty." United States v. Huddleston, 929 F.2d
1030, 1032 (5th Cir. 1991).
Chisholm's argument that the Government breached the plea
agreement lacks merit. "A motion brought under 28 U.S.C. § 2255
can be denied without a hearing only if the motion, files, and
records of the case conclusively show that the prisoner is entitled
to no relief." United States v. Bartholomew, 974 F.2d 39, 41 (5th
Cir. 1992). The plea agreement provides that Chisholm must receive
at least five years and a maximum of forty years for each offense.
The plea agreement contains no provision that the Government would
object to an enhancement or guideline adjustment made by the
district court. The plea agreement also expressly provides that
there was no agreement with the Government as to the actual
sentence that would be imposed and that no other promises or
inducements had been made. Thus, the record conclusively shows
that Chisholm is entitled to no relief.
Chisholm's challenges to the calculation of his sentence are
not cognizable under § 2255 because they are nonconstitutional
issues that could have been raised on direct appeal. See United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). In the
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interests of judicial economy, this court will assume that the
district court treated Chisholm's pro se § 2255 motion as a
§ 3582(c)(2) motion, and dismissed Chisholm's sentencing claims on
the merits. See United States v. Mimms, 43 F.3d 217, 219 (5th Cir.
1995). The district court's decision to reduce a sentence under
§ 3582(c)(2) is discretionary. United States v. Shaw, 30 F.3d 26,
28029 (5th Cir. 1994).
Chisholm contends that the district court should have given
him an additional one-point reduction for entering a timely guilty
plea under the U.S. Sentencing Guidelines § 3E1.1. Chisholm was
sentenced after the amendment to § 3E1.1 became effective.
Therefore, § 3582(c)(2) is not applicable.
AFFIRMED.