IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30833
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN LUTCHER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 95-CA-423
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May 17, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
Melvin Lutcher moves for leave to appeal in forma pauperis
(IFP) the denial of his 28 U.S.C. § 2255 motion, arguing that
counsel was ineffective for failing to object to the district
court’s instructions regarding the burden of proof in a criminal
case and the use of extrinsic evidence, for failing to obtain a
laboratory report from the Government, and for failing to move
*
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that this opinion should not be published and is not precedent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. 95-30833
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for a judgment of acquittal based on entrapment or raise
entrapment as an issue on appeal; that the Government violated
the Fourth Amendment by not testing the cocaine at issue in his
case; that the Government engaged in outrageous conduct by using
government-owned cocaine to entrap Lutcher; that the district
court erred by failing to depart downward from his guideline
sentencing range; and that the Government manipulated the amount
of cocaine involved in his offense for sentencing purposes.
Lutcher raises his contentions of ineffective assistance
regarding the alleged failure of counsel to object to the
district court’s instructions for the first time on appeal. This
court determined the merits of Lutcher’s contentions against the
instructions themselves on direct appeal; Lutcher may not
relitigate those issues. United States v. Santiago, 993 F.2d
504, 506 & n.4 (5th Cir. 1993). Because this court has
determined the merits of Lutcher’s instruction contentions,
Lutcher cannot demonstrate prejudice from counsel’s alleged
deficiencies, see Strickland v. Washington, 466 U.S. 668, 687
(1984); he cannot show plain error. Highlands Ins. Co. v.
National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994),
cert. denied, 115 S. Ct. 903 (1995).
Lutcher can show no plain error regarding his Fourth
Amendment contention, which he raises for the first time on
appeal. The Fourth Amendment is designed to prohibit
unreasonable searches and seizures, see United States v.
No. 95-30833
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Martinez-Fuerte, 428 U.S. 543, 554 (1976); whether the Government
tested the cocaine after the seizure is unrelated to the seizure
itself.
Lutcher presents no legal basis for this court to find plain
error regarding counsel’s alleged failure to obtain a laboratory
report regarding the purity of cocaine. Drug purity is not an
element of possession with intent to distribute, United States v.
Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988); Lutcher
does not indicate how a report reflecting the purity of his
cocaine could have benefited the jury.
The evidence at trial was sufficient for the jury to find
that Lutcher was predisposed to trade in drugs. See United
States v. Mora, 994 F.2d 1129, 1137 (5th Cir.), cert. denied, 114
S. Ct. 417 (1993); United States v. Hudson, 982 F.2d 160, 162
(5th Cir.), cert. denied, 114 S. Ct. 100 (1993). Lutcher can
show no prejudice from counsel’s alleged failures to pursue a
judgment of acquittal based on entrapment or to raise entrapment
on appeal.
Lutcher raises his contention that the Government engaged in
outrageous conduct to entrap him is raised for the first time on
appeal. Had Lutcher raised the issue in the district court, it
would have been subject to a procedural bar, had the Government
wished to invoke the bar. See United States v. Drobny, 955 F.2d
990, 994-95 (5th Cir. 1992). No plain error results because the
No. 95-30833
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district court did not consider the possibility of outrageous
conduct.
“A district court’s technical application of the Guidelines
does not give rise to a constitutional issue.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Lutcher cannot raise
his downward-departure contention for the first time in his
§ 2255 motion.
Assuming, arguendo, that sentencing manipulation is a viable
theory, See United States v. Washington, 44 F.3d 1271, 1279 (5th
Cir.), cert. denied, 115 S. Ct. 2011 (1995), the evidence
indicates that Lutcher was disposed to deal in large quantities
of drugs. Lutcher’s sentencing-manipulation contention is
unavailing.
Because Lutcher has not raised a nonfrivolous issue for
appeal, his motion for leave to proceed IFP is DENIED.
APPEAL DISMISSED. See 5TH CIR. R. 42.2.