1 Local Rule 47.5.1 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should not be published.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. 95-50073

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STEPHEN BOGDON,

Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(88-CR-120)

_____________________________________________________

July 31, 1995

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:1

Stephen Bogdon, pro se, appeals from the denial of 28 U.S.C.

§ 2255 relief. We AFFIRM.

I.

Bogdon entered a guilty plea for conspiracy to distribute

methamphetamine, and was sentenced, inter alia, to 240 months

imprisonment. Our court affirmed his conviction on direct appeal.

United States v. Bogdon, No. 89-1446 (5th Cir. November 22, 1989)

(unpublished). Bogdon moved to vacate his sentence under 28 U.S.C.
- 2 -

§ 2255, claiming improper application of the Sentencing Guidelines,

ineffective assistance of counsel, and, in a supplemental motion,

that the Sentencing Commission exceeded its statutory authority in

including conspiracy within the ambit of "controlled substance

offenses". The district court adopted the report and

recommendation of the magistrate judge, and denied Bogdon's motion.

II.

A.

Bogdon claims he is entitled to relief on the basis that the

court applied improperly the career offender provision of the

Sentencing Guidelines, § 4B1.2, to enhance his sentence. The

section was applied to Bogdon's prior conviction for possession of

over 20 grams of marijuana. Relying on our court's holding in

United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992),

Bogdon claims that a simple possession offense is not a "drug

trafficking offense" within the meaning of the guidelines. 

It goes without saying that § 2255 relief is reserved for

constitutional violations 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). Accordingly, this claim

is not cognizable under § 2255. "A district court's technical

application of the Guidelines does not give rise to a

constitutional issue." Id. 

Furthermore, even assuming Bogdon could show cause for his

failure to raise this issue on direct appeal, he cannot show "a
2 Because the 1989 guideline differs from the 1988 version,

Bogdon's ineffective assistance claim, based on his attorney's

failure to object to the district court's application of that

guideline, fails. Bogdon must demonstrate, inter alia, that his

attorney's conduct was objectively unreasonable in light of the law

in effect at the time of trial. Strickland v. Washington, 466 U.S.

668, 689 (1984). Under the 1988 guidelines, the sentencing court

could consider listed offenses and "substantially similar"

offenses. Given this leeway, Bogdon's attorney was not

constitutionally ineffective for failing to object. Nor was he

constitutionally ineffective for failing to anticipate our holding

in Gaitan. See Morse v. Texas, 691 F.2d 770, 772 n.2 (5th Cir.

1982). 

- 3 -

complete miscarriage of justice". Gaitan, on which Bogdon relies,

concerned the 1989 Sentencing Guidelines, wherein § 4B1.2 was

amended to eliminate listed offenses and phrases such as

"substantially similar [to a listed offense]". Gaitan, 954 F.2d at

1008-09 n.7. The 1989 guidelines did not become effective until

November 1, 1989. Id. Bogdon was sentenced on May 3, 1989, under

the 1988 guidelines.2 The application of the 1988 guidelines, to

which Gaitan does not apply, does not give rise to a complete

miscarriage of justice. See United States v. Towe, 26 F.3d 614,

616 (5th Cir. 1994). Accordingly, Bogdon is not entitled to relief

on this ground.

B.

Bogdon also claims relief based on United States v.

Bellazerius, 24 F.3d 698, 700-02 (5th Cir.), cert. denied, 115 S.

Ct. 375 (1994), which held that the Sentencing Commission exceeded

its authority under 28 U.S.C. § 994(h) in applying the career

offender guideline to defendants (like Bogdon) convicted only of

conspiracy offenses. Bogdon urges that Bellazerius entitles him to

relief because the sentencing court applied § 4B1.2 to his
3 Bogdon also claims ineffective assistance of counsel because

his attorney did not object to the sentencing court's application

of the career offender guideline to his conspiracy conviction.

Bogdon did not raise this claim in the district court; we will not

review it. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

- 4 -

conspiracy conviction. Our court recently addressed this issue,

and held specifically that such a claim is not cognizable under §

2255. United States v. Williams, No. 94-50329 (5th Cir. March 27,

1995) (unpublished).3

III.

For the foregoing reasons, the judgement is

AFFIRMED.