* 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that this opinion should not be published.

 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50104

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ALAN DALE PHILLIPS,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

(CA W 90 100 4 ( CA W 94 293))

(August 16, 1995)

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

BACKGROUND

A jury found Alan Dale Phillips guilty of conspiring to

possess with intent to distribute more than 1,000 kilograms of
2

marijuana. The district court sentenced Phillips to 290 months of

imprisonment and five years of supervised release, and ordered him

to pay a $5,000 fine. 

Phillips's conviction was affirmed. He filed the instant

motion to vacate his sentence pursuant to 28 U.S.C. § 2255,

alleging (1) that his sentence was based on erroneous information

in violation of due process because the district court failed to

find that the amount of drugs involved in the offense was within

the scope of Phillips's specific agreement with the conspiracy and

because there was a mistake in fact as to the government's evidence

regarding his minor role in the offense; (2) that the law had

changed regarding these allegations since he filed his direct

appeal; (3) that he was denied the effective assistance of counsel

at sentencing because his lawyer failed to raise certain factual

disputes; and (4) that he was entitled to an evidentiary hearing.

The district court denied the motion. 

OPINION

Phillips argues that the district court erred when it

determined his relevant conduct under U.S.S.G. § 1B1.3. He also

argues that the court erred when it denied him an adjustment in his

offense level for playing a minor role in the offense. 

A defendant who has been convicted and has exhausted his right

to appeal is presumed to have been "`fairly and finally

convicted'". United States v. Shaid, 937 F.2d 228, 231-32 (5th

Cir. 1991) (en banc) (citation omitted), cert. denied, 502 U.S.

1076 (1992). "[A] `collateral challenge may not do service for an
3

appeal.'" Id. at 231 (quoting United States v. Frady, 456 U.S.

152, 165 (1982)). In reviewing the denial of a § 2255 motion, this

Court reviews the district court's factual findings for clear

error, and questions of law are reviewed de novo. United States v.

Gipson, 985 F.2d 212, 214 (5th Cir. 1993). "Relief under . . . §

2255 is reserved for transgressions of constitutional rights 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). "A district court's technical application of

the Guidelines does not give rise to a constitutional issue." Id.

Phillips seems to argue that he could not have raised his

relevant-conduct argument on appeal because § 1B1.3 was

subsequently amended to require that the district court determine

not only the amount of drugs reasonably foreseeable to a defendant

charged in a conspiracy, but also that the amount of drugs fell

within the scope of the individual's agreement with the conspiracy.

Phillips concedes, however, that this Court has held that

amendments to the Guidelines in 1992 did not change the substantive

meaning of § 1B1.3. Id. at 15 (citing United States v. CarrilloMorales, 27 F.3d 1054, 1067 & n.18 (5th Cir. 1994), cert. denied,

115 S. Ct. 1163 (1995). Commentary to amended § 1B1.3 provides

that because the scope of the criminal activity of one defendant

may not necessarily be the same as the scope of the entire

conspiracy, relevant conduct need not be the same for every

participant. Carrillo-Morales stated that this provision existed
4

in Application Note One to the 1991 version of § 1B1.3, but was

simply phrased differently. 27 F.3d at 1067 & n.18.

Phillips in essence argues that the Carrillo-Morales decision

was wrong. One panel of this court, however, cannot reverse

another panel. Dueringer v. Gen. Amer. Life Ins. Co., 853 F.2d

283, 284 n.1 (5th Cir. 1988). Phillips's argument that his

relevant conduct argument could not have been raised on direct

appeal is unavailing. 

Phillips's challenge to his sentence involves the technical

application of the Guidelines, a nonconstitutional issue, and could

have been raised on direct appeal. Neither the relevant conduct

argument nor the minor-role argument was raised on direct appeal.

Thus, these claims are not cognizable in a § 2255 motion. See

Vaughn, 955 F.2d at 368. 

Phillips also argues that the district court erred in not

granting him an evidentiary hearing on his § 2255 allegations.

Phillips asked for such a hearing on his motion. 

Section 2255 requires that the court conduct a hearing unless

the case files and records "conclusively show" that the petitioner

is entitled to no relief. 28 U.S.C. § 2255 (1994). The district

court need not hold an evidentiary hearing if the allegations are

negated by the record. See United States v. Briggs, 939 F.2d 222,

228 (5th Cir. 1991), cert. denied, 113 S. Ct. 1016 (1993). This

Court reviews a district court's denial of an evidentiary hearing

for abuse of discretion. United States v. Bartholomew, 974 F.2d

39, 41 (5th Cir. 1992).
5

Inasmuch as Phillips's claims are not cognizable under 

§ 2255, he is clearly entitled to no relief. Accordingly, the

district court did not abuse its discretion when it did not grant

an evidentiary hearing.

Counsel for Phillips filed a motion stating that he wants to

present a double jeopardy claim to the district court which he did

not raise on appeal or in his § 2255 motion. According to

Phillips, the "legal justification" for the double jeopardy claim

was non-existent when he filed his § 2255 motion. Phillips

contends that beginning with the Supreme Court's 1989 decision in

United States v. Halper, 490 U.S. 435 (1989), through the Court's

decision in Montana Department of Revenue v. Kurth Ranch, 114 S.

Ct. 1937 (1994), double jeopardy protections were expanded. He

argues that because Halper was decided before his conviction became

final, pursuant to Teague v. Lane, 489 U.S. 288 (1989), he is not

barred from raising the double jeopardy claim. The government

filed an opposition to the motion. 

This Court will not address issues not considered by the

district court. "[I]ssues raised for the first time on appeal are

not reviewable by this court unless they involve purely legal

questions and failure to consider them would result in manifest

injustice." Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

Even if Phillips's double jeopardy claim is purely legal, no

miscarriage of justice will occur if this Court refuses to review

it. Phillips can present this claim to the district court in a new

§ 2255 motion. The district court may or may not entertain the new
opin\95-50104.opn

6

motion in accordance with Rule 9(b) of the Rules Governing § 2255

Motions.

Phillips asks, alternatively, that he be granted a three-week

extension to file a reply brief. Counsel states that Phillips is

entitled to such an extension because Phillips has not been able to

communicate with counsel in a timely manner in order to prepare a

reply brief. The court may grant such a motion for "good cause

shown" pursuant to Fed. R. App. 26(b). However, Phillips does not

present a good reason for seeking the extension of time in which to

file his reply brief. The motion is denied.

AFFIRMED