* 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that this opinion should not be published and is not precedent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. 96-50252

Summary Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE O. NYATENG,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(No. MO-95-CA-020)

_________________________________________________________________

November 5, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

George O. Nyateng appeals from the denial of his § 2255 motion

to vacate, set aside, or reduce his sentence for conspiracy to

commit mail fraud. Needless to say, § 2255 is reserved for

transgressions of constitutional rights and for a narrow range of

issues that could not have been raised on direct appeal. E.g.,

United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

Nyateng contends that the district court erroneously applied

the sentencing guidelines by taking into account an “invalid”
conviction. Application of the guidelines is not a constitutional

issue and could have been raised on direct appeal had Nyateng not

waived his right to appeal in his plea agreement. Id. at 368.

Even if this issue could be raised, excluding the conviction would

not alter Nyateng’s sentence, because he was already in Category I,

the lowest possible criminal history category.

Nyateng also claims that the district court breached the plea

agreement because the court did not give effect to the Government’s

§ 5K1.1 recommendation for a downward departure. Again, assuming

this issue can be raised in a § 2255 proceeding, the district court

was not a party to the plea agreement; accordingly, it was not

bound by its terms. See United States v. Woods, 907 F.2d 1540,

1542 (5th Cir. 1990), cert. denied, 498 U.S. 1070 (1991). 

Finally, Nyateng contends that he was given ineffective

assistance of counsel because his attorney did not object to

consideration of the “invalid” conviction, failed to object to the

district court’s denial of the Government’s § 5K1.1 motion, and

failed to perfect a direct appeal. To prevail on this ineffective

assistance of counsel claim, Nyateng must show that, but for

deficient performance, his sentence would have been significantly

less harsh. See Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.

1993). As noted, Nyateng was in criminal history Category I, so

the exclusion of his prior conviction would not have affected his

sentence. In addition, his counsel urged the court to grant the

Government’s motion; moreover, Nyateng indicated that he understood
that the district court was not bound by the terms of his plea

agreement. Finally, Nyateng waived his right to appeal in his plea

agreement; consequently, a direct appeal would have been meritless.

Nyateng’s counsel was not deficient for failing to raise a

meritless claim.

In sum, Nyateng’s motion for oral argument is DENIED and the

denial of his § 2255 motion is AFFIRMED.