*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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-30295

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DAVID HAMPTON, also known as Eastwood,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

September 20, 1996

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

BACKGROUND

Following a guilty plea, David Hampton was convicted of

conspiracy to possess with intent to distribute crack cocaine and

of being a felon in possession of a firearm. A presentence report

(PSR) was prepared which calculated Hampton’s criminal history

level and relevant sentencing range based on several previous
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convictions, including a juvenile adjudication. Hampton objected

to the PSR’s calculations. The district court overruled Hampton’s

objections before adopting the PSR’s factual findings. Hampton did

not file a direct appeal.

Instead, Hampton filed a 28 U.S.C. § 2255 motion alleging (1)

that unconstitutional disparity exists between his sentence for an

offense involving crack cocaine and sentences for offenses

involving powder cocaine, (2) that he was denied effective

assistance of counsel because his trial counsel failed to research

his criminal history and failed to object to the inclusion of

Hampton’s juvenile offense in the calculation of his sentencing

range, and (3) that the sentencing guidelines were improperly

applied to include his prior juvenile adjudication in his criminalhistory-category calculation. The district court denied the

motion, concluding that Hampton “failed to raise these claims on

direct appeal” and “failed to meet the heavy burden placed on

habeas petitioners to show cause and prejudice for issues not

raised on direct appeal.” Hampton timely appealed.

OPINION

On appeal, Hampton reiterates the same substantive arguments

supporting his underlying motion and submits the same brief without

citing any specific alleged error committed by the district court

in denying his motion. This Court applies two principles in trying

to make sense of an inarticulate pro se brief. First, the brief

must be liberally construed. The court holds the pro se litigant

to a lower standard of argument than that to which attorneys are
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held. Haines v. Kerner, 404 U.S. 519, 520 (1972). Second, the pro

se appellant must actually argue something that is susceptible to

liberal construction. Grant v. Cuellar, 59 F.3d 523, 524-25 (5th

Cir. 1995); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);

Fed. R. App. P. 28(a).

Grant and Yohey provide guidance on how to apply Haines.

Taken together, these three cases mean that, when a pro se

appellant tries inartfully to identify a legal error, this Court

analyzes the purported error with the same consideration due a

competently briefed argument made by an attorney. The pro se

appellant, however, must provide some semblance of an argument for

the court to consider. See Grant, 59 F.3d at 524. Accordingly, we

address the assertions in Hampton’s brief that can fairly be said

to be attempts at explaining that the district court erred in

handling the case. Given liberal construction, Hampton argues that

the district court erred in denying his § 2255 motion based on its

conclusion that he failed to show cause and prejudice for his

failure to raise on direct appeal his claims of unconstitutional

sentencing disparity, ineffective assistance of counsel, and

improper application of the sentencing guidelines.

In reviewing the denial of a § 2255 motion, this Court reviews

the district court’s findings of fact for clear error. Questions

of law are reviewed de novo. United States v. Gipson, 985 F.2d

212, 214 (5th Cir. 1993).
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Sentence Disparity

Generally, a movant cannot raise a constitutional or

jurisdictional issue for the first time in a § 2255 motion unless

he shows cause for his failure to raise it on direct appeal and

prejudice resulting from the asserted error, or that a miscarriage

of justice will occur if it is not considered. United States v.

Segler, 37 F.3d 1131, 1134 (5th Cir. 1994); United States v. Shaid,

937 F.2d 228, 232 (5th Cir. 1991) (en banc), cert. denied, 502 U.S.

1076 (1992). Constitutionally ineffective assistance of counsel,

in the form of failure to raise issues on appeal, can operate as

cause for procedural default. Murray v. Carrier, 477 U.S. 478,

488-92 (1986). A petitioner who fails to show cause and prejudice

may pursue his claims in a § 2255 motion if he can show that he was

actually innocent of the offense of conviction. Shaid, 937 F.2d at

232 n.7.

Hampton does not allege cause and prejudice for his failure to

raise the powder cocaine/crack disparity issue in a direct appeal.

Hampton does not allege that his counsel was ineffective for

failing to raise the disparity issue on direct appeal, nor does

Hampton allege that he was actually innocent of the crime of

conviction; therefore, these issues do not serve as basis for

“cause” for his failure to raise the disparity issue on direct

appeal.

Although Hampton asserted a violation of his right to due

process caused by the sentencing disparity, the district court

incorrectly viewed Hampton’s argument as only asserting non-
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constitutional application of the sentencing guidelines as to this

issue. However, the district court correctly assessed that Hampton

failed to show cause or prejudice for his failure to raise the

issue on direct appeal. We affirm the district court’s denial of

the § 2255 motion as it relates to the claim of unconstitutional

sentencing.

Ineffective Assistance of Counsel

The district court denied relief on the ineffective assistance

of counsel issue, concluding that Hampton failed to raise the issue

on direct appeal and failed to meet the burden of showing cause and

prejudice for his failure to raise the issue on direct appeal.

This conclusion is in error.

“[A] claim of ineffective assistance of counsel cannot be

resolved on direct appeal when the claim has not been raised before

the district court since no opportunity existed to develop the

record on the merits of the allegations.” United States v. Higdon,

832 F.2d 312, 313-14 (5th Cir. 1987), cert. denied, 484 U.S. 1075

(1988). Therefore, Hampton should be allowed to raise the

ineffective assistance of counsel issue in his § 2255 motion

without showing cause and prejudice for his failure to raise it on

direct appeal. See United States v. Smith, 844 F.2d 203, 206 (5th

Cir. 1988); United States v. Pierce, 959 F.2d 1297, 1301 (5th

Cir.), cert. denied, 506 U.S. 1007 (1992).
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The district court’s order of dismissal insofar as this

ineffective assistance of counsel claim is involved is vacated and

we remand that claim for further consideration.

Application of Sentencing Guidelines

In his § 2255 motion, Hampton also argued that his juvenile

conviction should not have been included in the calculation of his

criminal history category. The district court either failed to

address this argument or it consolidated this argument with

Hampton’s assertion of constitutional disparity, evidenced by its

conclusion that “[t]he petitioner alleges that his constitutional

rights protected under the 8th and 14th amendments were violated by

the application of the Sentencing Guidelines and the Presentence

Investigation Report....” The district court then denied relief

based on Hampton’s failure to raise the issue on direct appeal and

his failure to show cause and prejudice. 

The district court’s disposition of this issue is without

error because Hampton’s challenge to the district court’s

application of the Guidelines is not cognizable in a § 2255 motion.

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. This non-constitutional

issue could have been raised on direct appeal, but was not, thus

precluding our consideration of the issue under § 2255. United

States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
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The district court’s disposition of this sentencing guidelines

issue is affirmed.

AFFIRMED in part and VACATED and REMANDED in part.