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* 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should not be published.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. 94-50795
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TERRENCE JACKSON SMITH,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(June 20, 1995)
( A 94 CA 557 & A 89 CR 110 (01))
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
Per curiam:*
Terrence Jackson Smith ("Smith") appeals from a final judgment
denying relief under 28 U.S.C. § 2255. We affirm.
FACTS
Smith entered into a plea agreement whereby he pleaded guilty

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to count one of an indictment in return for dismissal of the
remaining counts. Smith was convicted of conspiracy to distribute
marijuana and sentenced to an 82-month term of imprisonment, a
five-year period of supervised release, a $12,500 fine, and a $50
special assessment.
The Government filed objections to the original pre-sentence
report ("PSR"), which attributed 201 pounds of marijuana to Smith
for sentencing purposes, arguing that an additional 1,000 pounds of
marijuana should be attributed to Smith for sentencing purposes
because Smith and his brother, Thomas Smith, received that amount
in January of 1989. The amended PSR held Smith accountable for the
additional 1,000 pounds of marijuana. Smith moved to withdraw his
guilty plea, which, following an evidentiary hearing, the district
court denied.
This court affirmed Smith's conviction and sentence on direct
appeal. Smith filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. Smith alleged that: (1) the
evidence did not support a finding that he was capable of producing
or intended to produce more than 201 pounds of marijuana; (2) the
evidence did not support that he was responsible for an additional
1,000 pounds of marijuana; (3) he was denied effective assistance
of counsel because his counsel failed to introduce readily
available testimony or cite portions of the record which would have
supported a finding that he neither intended to produce nor had the
ability to produce more than 201 pounds of marijuana; his attorney
failed to argue that he could not be held responsible for more than

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201 pounds of marijuana under U.S.S.G. § 2D1.4; and his attorney
failed to insist upon the use of the appropriate version of the
guidelines to determine his base offense level; and (4) the
district court unlawfully imposed a five-year term of supervised
release. Following a de novo review, the district court partially
granted Smith's motion, revising Smith's term of supervised release
from five years to three years, but denied the motion in all other
respects. Smith appealed.
DISCUSSION
A. The amount of marijuana to be considered for sentencing.
In ruling on Smith's § 2255 motion, the district court
determined that Smith's arguments that the court erred in
sentencing him on the basis of 1,000 pounds of marijuana and that
he was not capable of and did not intend to produce more than 201
pounds of marijuana had been disposed of in Smith's direct appeal
to this court. This court will not reconsider an issue in a § 2255
motion that was disposed of on direct appeal. United States v.
Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 476 U.S. 1118
(1986).
In Smith's direct appeal, he argued that the district court
erred in considering the 1,000-pound transaction as part of his
relevant conduct for sentencing purposes. This Court stated,
although arguably in dicta, that the 1,000-pound drug quantity was
not clearly erroneous and rejected Smith's challenge to computation
of his base offense level based on the aggregation of the drug
quantities. As Smith correctly notes, however, this court also

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stated that, "Smith does not challenge the district court's finding
as clearly erroneous, but instead argues that the 1,000-pound
shipment was not, as a matter of law, relevant to the offense of
conviction."
Even assuming that this court did not dispose of Smith's
arguments that the court erred in sentencing him on the basis of
1,000 pounds of marijuana and that he was not capable of and did
not intend to produce more than 201 pounds of marijuana, the claim
is not cognizable. "Relief under 28 U.S.C.A. § 2255 is reserved
for transgressions of constitutional rights and for a narrow range
of injuries that could not have been raised on direct appeal and
would, if condoned, result in a complete miscarriage of justice."
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). A
nonconstitutional claim that could have been raised on direct
appeal, but was not, may not be raised in a collateral proceeding.
United States v. Shaid, 937 F.2d 228, 232 n.7 (5th Cir. 1991) (en
banc), cert. denied, 502 U.S. 1076 (1992).
B. U.S.S.G. §2D1.4
Smith argues that the district court erred in failing to
properly determine the drug quantity for sentencing purposes
pursuant to U.S.S.G. § 2D1.4, comment (n.1) (1989). Smith argues
that the district court erred in failing to sentence him under the
1989 version of § 2D1.4, the version in effect at his sentencing,
rather than the 1988 version. Assuming that these arguments were
not disposed of by this court on direct appeal, they are not
cognizable in a § 2255 proceeding as a district court's technical

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application of the guidelines does not give rise to a
constitutional issue. Vaughn, 955 F.2d at 368. As Smith also
raises these issues in the context of ineffective assistance of
counsel arguments, these issues are considered in that context
below.
C. Did the district fail to make a necessary factual finding?
Smith argues for the first time on appeal that the district
court erred in failing to make a factual finding regarding the
1,000 pounds of marijuana in violation of Fed. R. Crim. P.
32(c)(3)(d). This court need not address issues not considered by
the district court. "[I]ssues raised for the first time on appeal
`are not reviewable by this court unless they involve purely legal
questions and failure to consider them would result in manifest
injustice.'" Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991). This issue is not purely legal. Thus, this court should
not consider this issue for the first time on appeal.
D. Ineffective assistance of counsel
This court reviews claims of ineffective assistance of counsel
to determine whether counsel's performance was both deficient and
prejudicial to the defendant. United States v. Gipson, 985 F.2d
212, 215 (5th Cir. 1993). For this ineffective-assistance claim in
the context of a non-capital sentencing proceeding, the burden
Smith must meet on the prejudice prong is "whether there is a
reasonable probability that but for trial counsel's errors
[Smith]'s non-capital sentence would have been significantly less
harsh." Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993)

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(footnote omitted).
Smith argues that his counsel was ineffective for failing to
insist upon the use of the appropriate version of the guidelines
for determining his base offense level. Smith was sentenced on
September 17, 1990. Section 1B1.11 (1994) instructs the sentencing
court to use the guidelines manual in effect on the date that the
defendant is sentenced unless the court determines that "the use of
the [g]uidelines [m]anual in effect on the date that the defendant
is sentenced would violate the ex post facto clause of the United
States Constitution." See United States v. Davidson, 984 F.2d 651,
655 (5th Cir. 1993). Thus, in the instant case, barring an ex post
facto clause violation, the district court should have used the
1989 version of the guidelines, effective November 1, 1989, rather
than the 1988 version. As neither the original PSR nor the amended
PSR forms part of the appellate record, it is unclear which
version, if either, the district court used in computing Smith's
sentence. As discussed below, even if the district court did not
use the 1989 version of the guidelines, Smith has failed to show
prejudice resulting from his counsel's failure to insist upon the
use of the 1989 version.
Smith argues that his counsel was ineffective for failing to
argue at sentencing or on direct appeal that he could not be held
responsible for more than 201 pounds of marijuana under § 2D1.4,
comment. (n.1) (1989). Smith argues that his counsel was
ineffective for failing to introduce readily available testimony or
cite portions of the record which would have supported a finding

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that he neither intended to produce nor had the ability to produce
more than 201 pounds of marijuana. Smith suggests that the purpose
of the 1989 amendment to application note one of § 2D1.4 was to
prevent "inflated offense levels in uncompleted offenses where a
defendant is merely `puffing,' even though the court is then
authorized to address the situation by a downward departure."
U.S.S.G. App. C, 136 (1989).
U.S.S.G. § 2D1.4 (1989), provides that "[i]f a defendant is
convicted of a conspiracy or an attempt to commit any offense
involving a controlled substance, the offense level shall be the
same as if the object of the conspiracy or attempt had been
completed." Application note 1 to § 2D1.4, amended November, 1989,
provides that
If the defendant is convicted of a conspiracy that
includes transactions in controlled substances in
addition to those that are the subject of substantive
counts of conviction, each conspiracy transaction shall
be included with those of the substantive counts of
conviction to determine scale. If the defendant is
convicted of an offense involving negotiation to traffic
in a controlled substance, the weight under negotiation
in an uncompleted distribution shall be used to calculate
the applicable amount. However, where the court finds
that the defendant did not intend to produce and was not
reasonably capable of producing the negotiated amount,
the court shall exclude from the guideline calculation
the amount that it finds the defendant did not intend to
produce and was not reasonably capable of producing.
The 1989 amendment deleted the following: "[w]here the defendant
was not reasonably capable of producing the negotiated amount, the
court may depart and impose a sentence lower than the sentence that
would otherwise result," and inserted, "[h]owever, where the court
finds that the defendant did not intend to produce and was not

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reasonably capable of producing the negotiated amount, the court
shall exclude from the guideline calculation the amount that it
finds the defendant did not intend to produce and was not
reasonably capable of producing." U.S.S.G. App. C, 136 (1989).
"The purpose of this amendment is to provide a more direct
procedure for calculating the offense level where the court finds
that the defendant did not intend to produce and was not reasonably
capable of producing the negotiated amount." Id.
At sentencing, the Government offered the testimony of Richard
Coulter, a cooperating individual. Coulter testified that Smith
delivered a total of 110 pounds of marijuana to him over a period
of weeks. Coulter testified that all of the marijuana he received
from Smith appeared to originate from a single load. He asked
Smith the size of the load, and Smith stated that the size was
1,000 pounds. Coulter testified that Smith stated that he and his
brother ordered the 1,000-pound load of marijuana for some
Canadians who later backed out of the deal. Coulter testified that
he believed Smith's statement about the 1,000-pound load because
Smith supplied Coulter with marijuana from the same load for five
or six weeks. Smith testified that he never had a conversation
with Coulter regarding 1,000 pounds of marijuana. Smith's
testimony did not suggest that he boasted or engaged in "puffing"
about 1,000 pounds of marijuana to Coulter.
At sentencing, Smith's counsel did object to the reliability
of the testimony regarding the thousand-pound quantity of
marijuana. The district court determined that there was "reliable

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and credible evidence that . . . Smith . . . [was] involved in a
transaction with some Canadians involving a thousand pounds of
marijuana." The court noted that it had heard Coulter testify "on
a number of occasions and heard him being cross-examined by several
more than competent attorneys, and he has an incredible accurate
memory." Further, the amended PSR apparently recommended that
Smith be held accountable for the additional 1,000 pounds of
marijuana.
Smith has failed to demonstrate a reasonable probability that
even under the 1989 application note to § 2D1.4 the district court
would have determined that he did not intend to produce and was not
reasonably capable of producing the 1,000-pound amount of
marijuana. Thus, even assuming Smith's counsel's performance was
deficient at sentencing and on direct appeal for failing to argue
the above points, Smith has failed to show prejudice because he has
failed to demonstrate a reasonable probability that but for his
counsel's errors his sentence would have been significantly less
harsh, Spriggs, 993 F.2d at 88, and also has failed to demonstrate
a reasonable probability that but for his counsel's errors, the
result of his direct appeal would have been different. Strickland
v. Washington, 466 U.S. 668, 694 (1984).
CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
judgment denying in part Smith's 28 U.S.C. § 2255 Motion to Vacate,
Set Aside or Correct Sentence.

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