IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-31274
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY RAY TATUM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 91-CR-50073
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May 15, 1996
Before REAVLEY, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
Billy Ray Tatum argues that the district court erred in
denying his motion to reduce his sentence.
We have reviewed the record, including the transcripts of
Tatum's rearraignment and sentencing hearings, and the briefs of
the parties, and have determined that the district court's denial
of the motion should be affirmed. The district court did not
have jurisdiction to reduce Tatum's sentence pursuant to 18
U.S.C. § 3582(c)(2) because he was not asserting that he was
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 95-31274
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entitled to relief under an amended guideline that had been given
retroactive effect by the Sentencing Commission. See U.S.S.G.
§ 1B1.10(c), p.s.; United States v. Early, 27 F.3d 140, 142 (5th
Cir.), cert. denied, 115 S. Ct. 600 (1994)
Tatum is challenging the district court's initial denial of
a credit for acceptance of responsibility and its decision to
sentence him as a career offender. These claims, which could
have been raised on direct appeal but were not, are not
cognizable pursuant to 28 U.S.C. § 2255. See United States v.
Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
The district court did not commit plain error in denying
Tatum's claims that he was subjected to selective prosecution and
that his sentence was improperly enhanced pursuant to 18 U.S.C.
§ 924(e)(1). The former argument does not have a sufficient
factual basis to support relief, and the latter argument is
factually incorrect.
Tatum's argument that he was subjected to double jeopardy
has no arguable merit. See United States v. Moore, 958 F.2d 646,
650 (5th Cir. 1992). Nor does his argument that the district
court breached the plea agreement by relying on the presentence
report at sentencing have any merit. Tatum acknowledged in the
plea agreement and at his rearraignment that his sentence could
not be determined by the district court until the presentence
report had been completed.
Tatum argued for the first time in his reply brief that he
was entitled to a jury trial to determine whether he violated 18
U.S.C. § 924(e) and that he was subjected to multiple punishment
No. 95-31274
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because his property was forfeited without a hearing and he did
not receive a sixteen-month credit on his federal sentence.
This court will not review issues that are initially raised in a
reply brief. United States v. Prince, 868 F.2d 1379, 1386 (5th
Cir.), cert. denied, 493 U.S. 932 (1989).
AFFIRMED.