UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50183
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT JAMES DEVINE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(No. CA-W-94-346)
August 30, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
We AFFIRM the district court’s judgment denying the appellant,
Robert Devine (Devine), relief in his action brought pursuant to 28
*
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should not be published.
U.S.C. § 2255 for the following reasons:
1. Devine’s claim seeking relief based upon changes to
U.S.S.G. § 1B1.3 which were made after his sentence was imposed is
not a cognizable § 2255 action. The sentence was valid at the time
of imposition, and does not give rise to a complete miscarriage of
justice. United States v. Mimms, 43 F.3d 217, 219 (5th Cir. 1995).
2. Devine’s claim of an excessive sentence based on an
alleged error in computing his base offense level with respect to
dextro-methamphetamine (d-meth) rather than levo-methamphetamine
(l-meth) relates to a technical application of the sentencing
guidelines and could have been raised on direct appeal. Such a
claim is not cognizable in a habeas action brought under § 2255.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
3. Devine’s argument that his counsel was ineffective for
failing to request a multiple-conspiracy jury instruction lacks
merit. On direct appeal, this Court addressed the issue whether
multiple conspiracies existed and affirmed the district court’s
finding that there was only one conspiracy. United States v.
Devine, 934 F.2d 1325, 1332-35 (5th Cir. 1991). This finding is
binding on the district court in subsequent proceedings. See
Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1150 (5th
Cir. 1993). Because it has been determined that only one
conspiracy existed, Devine has failed to show prejudice to his
2
defense for his trial counsel’s failure to request a jury
instruction on the existence of multiple conspiracies.
4. Devine has failed to show he was prejudiced with respect
to his claim that he received ineffective assistance of counsel
because his attorney failed to object to the computation of his
base offense level using d-meth rather than l-meth. In United
States v. Acklen, 47 F.3d 739, 743 (5th Cir. 1995), this Court
determined that a § 2255 movant’s conclusional allegation that
“conclusive evidence” exists that the methamphetamine involved was
actually l-meth as opposed to d-meth was not sufficient to
establish that, or even put in genuine issue whether, the substance
was l-meth. Without more than such a conclusional allegation,
prejudice cannot be shown. Id. At 743-44 & n.11. In the instant
case, Devine has not even alleged that the substance was l-meth; he
contends merely that the Government was not put to its burden of
proof of establishing that the substance was d-meth. Thus, Devine
cannot show the prejudice needed to obtain relief for ineffective
assistance of counsel. See id.; see also Spriggs v. Collins, 993
F.2d 85, 88-89 (5th Cir. 1993).
AFFIRMED.
3