* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 11/8/96 TENTH CIRCUIT

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. ADRIAN ARNETT WILLIAMS, Defendant-Appellant. No. 96-1153 (D.C. No. 95-Z-936) (D. Colorado)

_____________________ ORDER AND JUDGMENT *

_____________________ Before BRORBY, EBEL and HENRY , Circuit Judges.

_____________________ After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Mr. Williams appeals from the district court's deni al of his Motion to1 He also presented a double jeopardy claim. That claim is not at issue in

this appeal.
-2- Vacate Conviction and Sentence Pursuant to 28 U.S.C . § 2255. We affirm the district court.
The district court convicted Mr. Williams on multip le drug charges involving cocaine base. Pursuant to the United States Sentencing Guidelines, the district court sentenced Mr. Williams to life impri sonment. The Sentencing Guidelines' harsh treatment of crimes involving coc aine base, as compared to those involving powder cocaine, drastically increas ed the length of Mr. Williams' sentence. See United States Sentencing Guidelines §2D1.1 (punish ing crimes involving cocaine base at a 100:1 ratio to those in volving cocaine). We upheld Mr. William's convictions on direct appeal in United States v. Williams , 45 F.3d 1481 (10th Cir. 1995).
Mr. Williams subsequently filed with the district c ourt the § 2255 motion presently at issue. In this motion, Mr. Williams argued the government failed to prove at trial "that the quantities of powder cocai ne which were not cocaine [ i.e., the cocaine base] were 'crack' cocaine," asserting "[c]ocaine based [sic] includes ... forms of cocaine other than 'crack' cocaine." 1 He asserts the harsh treatment-3-

the Sentencing Guidelines accord crimes involving c ocaine base is inapplicable unless the government establishes the cocaine base at issue is "crack" cocaine. See United States v. James , 78 F.3d 851, 855-58 (3d Cir.), cert. denied, 117 S. Ct. 128 (1996). Accordingly, he requests resentencing on the basis of powder cocaine, instead of cocaine base.
Mr. Williams should have made these arguments at tr ial or on his direct appeal, not in this § 2255 motion. Accordingly, Mr . Williams' arguments are procedurally barred, and we do not address their me rits. "[Section] 2255 is not available to test the legali ty of matters which should have been raised on appeal." A defendant wh o fails to present an issue on direct appeal is barred from ra ising the issue in a § 2255 motion, unless he can show cause for his pro cedural default and actual prejudice resulting from the alleged err ors, or can show that a fundamental miscarriage of justice will occu r if his claim is not addressed. This procedural bar ... applies to a de fendant's collateral attack on his sentence, just as it does to an attac k on his conviction. United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994) (citations omitted).
Mr. Williams has shown no cause for his procedural default. Nor has he shown a fundamental miscarriage of justice will res ult from failure to address his claims. Such a showing requires Mr. Williams to make a colorable showing of actual innocence. United States v. Richards , 5 F.3d 1369, 1371 (10th Cir. 1993). Mr. Williams does not assert actual innocence; rath er, he claims the government-4-

failed to prove his crimes involved crack cocaine.
Finally, Mr. Williams contends it is the government 's burden to raise procedural bar as a defense, and its failure to do so before the district court constitutes a waiver. Even if the government had n ot raised procedural bar on appeal, we have the power to do so sua sponte, so l ong as Mr. Williams has an opportunity to respond to the defense. United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994) (citing Hines v. United States , 971 F.2d 506, 509 (10th Cir. 1992)); see also Allen , 16 F.3d at 378-79 (noting power to procedurally b ar § 2255 motion even though government failed to asse rt defense until the appellate level). Here, Mr. Williams' reply brief provided a n opportunity to respond to the asserted defense. Accordingly, procedural bar is applicable.

We AFFIRM the judgment of the district court.

Entered for the Court: WADE BRORBY United States Circuit Judge