1 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should not be published.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. 95-30205

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHARLES LAMPTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

(94-CR-221-ALL)

August 31, 1995

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM: 1

BACKGROUND

Charles Lampton pleaded guilty to conspiracy to possess with

intent to distribute cocaine. Lampton was sentenced to a term of

imprisonment of 70 months t o be followed by a four-year term of

supervised release. Lampton did not file a direct appeal.2

Lampton filed a 28 U.S.C. § 2255 motion alleging that his

conviction and sentence should be vacated on the following grounds:

1) that his guilty plea was involuntary because the district court

accepted his guilty plea without requiring a written plea

agreement; 2) that the district court erred in imposing an enhanced

sentence without notice; 3) that the district court misapplied the

guidelines by sentencing Lampton based on his alleged involvement

with 3.5 to 5 kilograms of coca ine; 4) that the district court

erred in accepting his guilty plea because Lampton could not be

v alidly convicted of conspiring with a government agent; 5) t hat

the government engaged in entrapment; 6) that h is counsel was

ineffective; and 7) that his plea was involuntary because he was

not ad vised prior to entry of his plea that he was subject to a

fine.

The government responded to the motion and also argued that

Lampton is procedurally barred from attacking his guilty plea and

sentence because he did not challenge them on direct appeal and he

had failed to allege a valid ineffectiveness claim to explain such

failure.

The district court denied the motion. The court reached the

merits but also held that the issues were procedurally barred. T he

court determined that the ineffectiveness claim was "a transparent

effort" directed at his now deceased attorney. Lampton appealed,

and the district court granted his motion for leave t o appeal in

forma pauperis.3 OPINION

In his statement of issue s, Lampton lists only ineffectiveassistance-of-counsel claims. However, in the summary of his

arguments, he argues that his guilty plea was involuntary as a

result of the trial court's failure to conduct his rearraignment in

accord with Fed. R. Crim. P. 11. L ampton arg ues that he did not

receive notice th at his sentence would be enhanced from 60 to 70

months in accord with Rule 11(c). H e argues that he was allowed to

enter a guilty plea without the benefit of a written plea agreement

and, therefore, that there was no evidence that the prosecutor had

agreed to a 60-month sentence as part of the plea bargain. Lampton

contends the district court violated Rule 11 because, in the

absence of a written plea agreement, there was no factual basis for

the acceptance of his plea.

A defendant who has been convicted and has exhausted or waived

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

convicted'". U nited States v. Shaid

, 937 F.2d 228, 231-32 (5th

Ci r. 1991) (en banc) (citation omitted), c ert. denied

, 502 U.S.

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

appeal.'" I d . at 231 (quoting U nited States v. Frady

, 456 U.S.

152, 168 (1982)). Therefore, a defendant who raises a

constitutional or jurisdictional issue for the first time on

collateral re view must show "both `cause' for his procedural

default, and `actual prejudice' resulting from the error". I d

. at

232 (quoting Frady

, 456 U .S. at 168). The only exception to the

cause and prejudice test is the "extraordinary case

. . . in which4

a constitutional violation has probably resulted in the conviction

of one who is actually innocent". I d

. at 232 (internal quotations

and citation omitted).

The government must invoke the procedural bar in the district

court. U nited States v. Drobny , 955 F.2d 990, 994-95 (5th Cir.

1992). In this case, the government did raise the issue of

procedural bar in its response to Lampton's motion.

Allegations o f error which are not of constitutional or

jurisdictional magnitude which could have been raised on direct

appeal may not be asserted on collateral review in a § 2255 motion.

United States v. Capua

, 656 F.2d 1033, 1037 (5th Cir. 1981). Such

errors will be considered only if they could not have been raised

on direct appeal and, if condoned, would result in a complete

miscarriage of justice. Shaid , 937 F.2d at 232 n.7.

Although a failure to comply with the formal requirements of

Rule 11 is neither co nstitutional nor jurisdictional and can and

should be raised on direct appeal, in some cases Rule 11 violations

can have a constitutional dimension bearing on the knowing and

voluntary nature of the guilty plea. In order to be cognizable on

§ 2255, the m ovant must show that the alleged Rule 11 violation

resulted in a "`complete miscarriage of justice'" or in a

proce eding "`inconsistent with the rudimentary demands of fair

procedure'". U nited States v. Timmreck , 441 U.S. 780, 783-84

(1979) (citation omitted).

Lampton alleged in the district court that he did not raise

the issues raised in his § 2255 motion on direct appeal due to his5

counsel's illness and death. Lampton has not specifically

addressed "cause" for his fai lure to raise the Rule 11 issues on

direct appeal in his brief, but he does generally argue at the

conclusion of his brief that his denial of effective assistance of

counsel "meets the procedural test in Frady and Carrier ".

As discussed above, F rady requires a showing of "cause" and

"actual prejudice." 456 U.S. at 168. C arrier held that

constitutionally ineffective assistance of counsel, in the form of

failure to raise issues on appeal, can operate as cause for

procedural default. M urray v. Ca rrier , 477 U.S. 478, 488-92

(1986). Thus, Lampton has asserted that his counsel's failure to

file a direct appeal is "cause" sufficient to overc ome the

procedural bar. As discussed below, Lampton has failed to

demonstrate t hat he requested his counsel to file an appeal.

However, even ass uming that Lampton established "cause," he has

failed to demonstrate "actual prejudice" or that the alleged Rule

11 violations resulted in manifest injustice.

Lampton has not shown that the alleged errors resulted in a

miscarriage of justice because he has failed to demonstrate that he

had a plea ag reement with the government or that he received an

enhanced sentence. The minutes of Lampton's rearraignment

proceeding reflect that a plea-ba rgain letter was filed with

respect to codefendant Thomas Smith only. The court reviewed in

detail the plea agreement entered into between Smith and the

government. T he district court then, without any reference to a

plea agreemen t, asked Lampton whether he was pleading guilty6

because of any promises made to him by anyone, and Lampton

responded in the negative. L ampton again acknowledged that neither

his attorney nor anyo n e else had told him that he would be

receiving a specific sentence. Lampton assured the court that he

and his counsel had discussed the sentencing guidelines applicable

to his case, and Lampton recognized that any sentence estimate

given to him by counsel could be incorrect. C ounsel stated that he

had made no representations to Lampton with respect to his

sentence.

The record does not reflect that there was any plea bargaining

between Lampton and the government, and Lampton and his counsel

confirmed at his rearraignment that there had been no promises made

to him in connection with his plea. "Solemn declarations in open

court carry a strong presumption of verity." B lackledge v.

Allison

, 431 U.S. 63, 73-74 (1977). Lampton's assertions under

oath reflected that there had been no plea bargaining in the case.

Further, at the latter part of the re arraignment hearing, the

district court advised Lampto n that he could change his position

a nd persist in a not-guilty plea. Lampton declined to do so and

did not quest ion the district court with respect to the lack of

discussion concerning a plea agreement or the absence of a written

plea agreement.

Nor does the record reflect that Lampton received an enhanced

sentence. The transcript of the rearraignment proceeding reflects

that the district court advised Lampton that his offense carried a

mandatory minimum term of imprisonment of five years and a maximum7

term of imprisonment of 40 years. Lampton also acknowledged that

it was within the district court's discretion to sentence him in

accord with the sentencing guidelines and that the court could

impose a greater or lesser sentence. L ampton stated that he

understood that the district c ourt could impose the maximum

possible sentence of 40 years. This colloquy reflects that there

was no discussion of an enhanced sentence and that Lampton was

advised that his possible sentence could have greatly exceeded the

70-month sentence imposed.

Further, there is no indication in the record that the

government sought the imposition of an enhanced sentence. See 21

U.S.C. § 851 (a defendant cannot be sentenced to in creased

punish ment for a drug-related offense unless the government has

filed an information with the court listing the prior convictions

of the defendant relied upon). As discussed above, it was not

promised or indicated to Lampton prior to his guilty plea that he

would receive the mandatory minimum sentence of 60 months. He

received a 70-month sentence, wh ich was the lowest sentence

possible under the applicable guideline s. Because there was no

b asis for a determination that Lampton received an enha nced

sentence, the district court's failure to advise Lampton of such

fact was not error and certainly did not result in manifest

injustice.

Lampton argues that his counsel w as ineffective because he

advised him to plead without the benefit of a written plea8

agreement and did not advise him that the agreed upon sentence of

60 months had been increased to 70 months.

Because an ineffective-assistance-of-c ounsel claim is

constitutional and cannot generally be resolved on direct appeal,

a motion under § 2255 is the proper procedural vehicle for such

claims. United States v. Pierce , 959 F.2d 1297, 1301 (5th Cir.),

cert. denied

, 113 S. Ct. 621 (1992). To prevail on his claim of

ineffectiv e assistance, Lampton must show 1) that his counsel's

performance was deficient in that it fell below an ob jective

standard of reasonableness; and 2) that the deficient performance

prejudiced his defense. S trickla nd v. Washington , 466 U.S. 668,

687-94 (1984). In the context of a guilty plea, in order to show

prejudice, the defendant must show that "there is a reasonable

probability that, but for counsel's errors , he would not have

pleaded guilty and would have insisted on going to trial". H ill v.

Lockhart

, 474 U.S. 52 , 59 (1985). A failure to establish either

deficient performance or prejudice defeats the claim. S trickland

,

466 U.S. at 697.

Lampton's coun sel died several months after Lampton entered

the guilty pl ea and, thus, it was not possible for the district

court to obtain his testimony or affidavit concerning his

representation of Lampton. However, as discussed above, there is

no indication in the record that there was any plea bargaining in

the case or that Lampton had been promised that he would receive a

60-month sentence by counsel or any other party. Lampton has not

p roduced any new evidence demonstrating the existence of such an9

agreement. Therefore, Lampton has not demonstrated that his

counsel was deficient in failing to r equire a written plea

agreement or in contesting the imposition of the 70-month sentence.

Lampt on argues that his counsel was ineffective because he

failed to object to the PSR recommendation that he be held

accountable for 3.5 to 5 kilograms of cocaine. He argues that it

was not foreseeable to him that the drug transaction would involve

that amount of drugs.

The PSR recommended that Lampton receive a base offense level

of 30 because he part icipated in discussions to purchase

approximately 5 kilograms of cocaine for $50,000 from the

confidential informant (CI). I n the case of jointly undertaken

criminal activity, relevant conduct includes "all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity

. . . that occurred during the

commission of the offense, [and] in preparation for that offense

.

. . ." S ee § 1B1.3(a)(1)(B). The district court is required to

de termine the scope of the criminal activity that the defendant

agreed to undertake jointly and w hether the conduct of other

members in furtherance of the scheme was reasonably foreseeable to

the defendant. In making this determination, "the court may

consider any explicit agreement o r implicit agreement fairly

inferred from the conduct of the defendant and others." S ee §

1B1.3, comment. (n.2).

The factual resume supporting the guilty pleas of Lampton and

codefendant Thomas Smith, which w as signed by both defendants,10

stated that Lampton and the confidential informant (CI) had several

discussions about meetings planned between the coconspirators,

Smith and Lampton, and the CI to discuss the anticipated buy of 10

1/2 pounds of cocaine from the CI. A ccording to the resume, Smith

and Lampton brought the CI $50,000 to buy the 10 1/2 pounds of

cocaine. E ven if, as alleged by Lampton, he did not personall y

have the funds to purchase the amount of drugs discussed, the PSR

reflects that he introduced the CI to Smith, who was financially

capable of completing the transaction.

The record reflects that Lampton was aware that the conspiracy

involved at least five kilograms of cocaine. Because counsel had

no basis to argue that the amount of drugs involved in the

transaction was unforeseeable to Lampton, counsel was not deficient

in failing to object to the base offense level recommendation in

the PSR.

Lampton argues that counsel was ineffective because he failed

to argue that Lampton could not have conspired with a government

agent. Lampton argues that he negotiated with the government

informant only. L ampton was charged in the indictment with

conspiring with Thomas Smith to possess with intent to distribute

cocaine, and Lampton acknowledged his participation in such

conspiracy by signing the factual resume and by pleading guilty to

the charge. Therefore, an argument by counsel that Lampton

conspired with a government agent only would have been frivolous.

Lampton also argues that his counsel failed to argue that

Lampton was entrapped into committing the drug transaction. He2 Lampton has apparently abandoned his argument made in the

district court that the agent engaged in "Sentencing Entrapment" by

negotiating sales involving a large amount of cocaine in order to

increase Lampton's sentence. S ee Brinkmann v. Dallas County Deputy

Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987) (appellate court

need not consider issues abandoned on appeal).

11 argues that c ounsel should have raised an "entrapment" defense

because the PSR revealed that the confidential informant initiated

the drug transaction. I n the § 2255 motion, Lampton did not allege

this issue as an allegation of ineffectiveness of counsel. R ather,

he contended that "outrageous" government conduct entrapped him and

rendered his guilty plea involu ntary. 2 The district court

determined that L ampton had "failed to point to any set of facts

which would support his claims of

. . . entrapment and/or

outrageous Government conduct". Id . at 54.

This Court need not a ddress issues not considered by the

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

not reviewable by this co urt unless they involve purely legal

questi ons and failure to consider them would result in manifest

injustice." V arnado v. Lynaugh

, 920 F.2d 320, 321 (5th Cir. 1991)

(internal quotation marks and citation omitted). The determination

of an ineffective-assistance-of-counsel claim is a mixed question

of law and fact. S ee United States v. Faubion

, 19 F.3d 2 26, 228

(5th Cir. 1994). Therefore, it is generally not subject to review

when raised for the first time on habeas appeal.

However, even if the court should determine that the district

court has resolved all factual issues necessary to resolve the

claims by dismissing the entrapment/outrageous-conduct claim,12

Lampton has not demonstrated that the failure to address the claim

on appeal will result in manifest injustice. Lampton waived the

defense of entrapment by pleading guilty. S ee United States v.

Yater , 756 F.2d 1058, 1063 (5th Cir.), cert. denied , 474 U.S. 901

(1985) (when a defendant enters a guilty plea, he waives his right

to assert an entrapment defense).

Lampton argues that counsel was ineffective because he failed

to object to an imposition of a fine against Lampton although he

had not been advised that a fine could be imposed prior to his

guilty plea. Lampton argued in the district court that his plea

was involuntary because neither the court nor his trial counsel

informed him that he would be subject to a fine. He did not argue

in the district court, however, that his counsel was ineffective

for his failure to object to the imposition of the fine.

Therefore, this issue need not be addressed for the first time on

appeal. V arnado

, 920 F.2d at 321. In any event, it is clear on

the face of the record that counsel had no basis for arguing this

claim. The record of the rearraignment hearing shows that the

district court advised Lampton prior to his entry of a guilty plea

that, in addition to a term of impris onment, he was subject to a

fine of $2 million. The court further advised Lampton that he

could be fined under an alternative statutory provision in the

greater amount of $250,000 or twice his gross gain or his victim's

loss.

Lampton argues that counsel was ineffective because he failed

to file a timely notice of appeal on Lampton's behalf and failed to3 Counsel in the district court was retained.

13 advise him of his right to appeal and how to proceed as an indigent

defendant.

The failure of counsel to perfect an appeal upon request of

his client or failure to advise the client of his right to appeal

and the time limits involved may constitute ineffective assistance,

entitling the defendant to an out-o f-time appeal. S ee United

States v. Gipson

, 985 F.2d 212, 215 (5th Cir. 1993). However, a

defendant who fails to advise his attorney that he wished to appeal

may not assert a claim that he was denied the right to file a

direct appeal. S ee Childs v. Collins

, 995 F.2d 67, 69 (5th Cir.),

cert. denied , 114 S. Ct. 613 (1993).

Lampton has not demons trated that he advised his counsel to

file an appeal on his behalf and that counsel failed to do so. As

previously stated, Lampton's counsel died prior to his filing his

§ 2255 motion. Lampton's allegation in his § 2255 motion that he

and his counsel had discussed appealing his sentence based on the

government or court's failure to notify Lampton that he was

receiving an "enhanced" sentence is frivolous because Lampton did

not receive an enhanced sentence or even a severe guideline

sentence.

Further, the district court, at the conclusion of the

sentencing hearing, advised Lampton of his right to appeal his

conviction and sentence and also that the court would appoint

counsel if he could not afford to retain c ounsel. 3 Lampton

responded that he understood his rights. H owever, Lampton did not14

contact the court about the appointment of counsel nor did he

attempt to file an appeal on his own behalf. Lampton did not argue

that he had requested his counsel to file an appeal until he filed

his § 2255 motion six months after judgment was entered against him

in his criminal case, and after his counsel's death. Lampton has

not demonstrated that he instructed his counsel to file an appeal.

Lampton argues that his counsel was ineffective because he

failed to conduct discovery or an investigation of the drug

conspiracy. Lampton contends that if counsel had made pretrial

discovery, he would have learned that a defendant cannot conspire

with a CI and that the amount of drugs attributed to Lampton was

not reasonably foreseeable to Lampton. L ampton argues that he can

show " Hill prejudice" because, if he had proceeded to trial, he

would have shown that a defendant cannot conspire with a government

agent.

Lampton has not shown that his counsel was deficient or that

he was prejudiced as a result of his counsel's failure to further

investigate his case. As discussed, Lampton was convicted for

conspiring with codefendant Smith and not with the CI. Further,

the PSR and the factual resume reflect that Lampton was fully

involved in the conspiracy and was aware that it would involve the

purchase of approximately five kilograms of cocaine. Lampton has

not demonstrated that his counsel was ineffective.

AFFIRMED