* At the parties’ request, the case is unanimously or dered submitted without

oral argument pursuant to the applicable rules. Th is order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 9/3/96 FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. KENNETH FITZGERALD BANKS,

Defendant-Appellant. No. 95-6383 (D.C. No. CIV-94-1810-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.

Defendant was convicted after pleading guilty to on e count of being a felon in possession of a firearm in violation of 18 U.S.C . § 922(g)(1). The district court sentenced him to 115 months’ imprisonment. D efendant neither objected to the presentence report at the time of sentencing no r filed a direct criminal appeal.2--

Proceeding pro se, he later filed a motion to vacat e, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that his counsel was ineffective and that the district court incorrectly used two pr ior state convictions to calculate his base offense level and incorrectly imposed a fo ur-point enhancement to his sentence pursuant to U.S.S.G. § 2K2.1(b)(5). The d istrict court denied § 2255 relief after determining defendant’s claims were pr ocedurally barred because he failed to prove ineffective assistance of counsel a s cause excusing his procedural default. Alternatively, the court determined defen dant’s claims lacked merit. On appeal, defendant first argues that the districtcourt erred in failing to hold an evidentiary hearing. If afforded an eviden tiary hearing, defendant submits he could have proved that his prior convict ions were for simple possession of a controlled substance, rather than p ossession with intent to distribute. The relevant state court documents sho wed, and the district court correctly found, that defendant had been convicted twice for possession of a controlled substance with the intent to distribute, not mere possession. Also, the district court correctly determined defendant’s cla ims were procedurally barred. Because the record conclusively showed that defenda nt was not entitled to relief,

see 28 U.S.C. § 2255; see also United States v. Marr , 856 F.2d 1471, 1472 (10th Cir. 1988), we conclude the district court did not abuse its discretion in failing to1 Baileywas decided after the district court entered its d ecision. 3-- hold an evidentiary hearing, United States v. Barbo a , 777 F.2d 1420, 1422 & n.2 (10th Cir. 1985). Defendant next argues the district court erred in r elying on United States v. Gomez-Arrellano , 5 F.3d 464 (10th Cir. 1993), which he submits was overruled by Bailey v. United States , 116 S. Ct. 501 (1995), to uphold the four-point enhancement of his sentence. 1 Bailey , 116 S. Ct. at 505, defined the term “use” of a firearm during or in relation to a drug traffi cking offense or crime of violence under 18 U.S.C. § 924(c)(1). Before Baile ywas decided, this court held that the standard for conviction for use of a firearm under § 924(c) is much higher than the standard for enhancement for use or posses sionof a firearm in connection with another felony under § 2K2.1(b)(5). United States v. Sanders , 990 F.2d 582, 585 (10th Cir.), cert. denied , 510 U.S. 878 (1993); see also GomezArrellano , 5 F.3d at 466 (recognizing that although there ar e differences between § 924(c)(1) and § 2K2.1(b)(5), § 924 provides some guidance on nexus between firearms possession and narcotics offense for § 2K2 .1(b)(5) purposes). Thus, we do not agree that Baileyoverruled Gomez-Arrellano or that the district court erred in relying on Gomez-Arrellano . The district court correctly determined that defendant was procedurally barred from challenging the enhancement and that the4--

record shows evidence of an appropriate nexus betwe en the firearm and the drugs found in defendant’s car. Finally, defendant argues that the four-point enhan cement for use or possession of a firearm in connection with another felony pursuant to § 2K2.1(b)(5) was improper because the enhancement was for the same firearm he pleaded guilty to possessing and that a two-point e nhancement under U.S.S.G. § 2D1.1(b)(1) would have been more appropriate. Th is argument is newly raised on appeal, and we do not consider it. See Singleton v. Wulff , 428 U.S. 106, 120 (1976)(“It is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.”); United States v. Allen , 16 F.3d 377, 379 (10th Cir. 1994)(declining to address issues not presente d to district court). The judgment of the United States District Court is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge