Unpublished Disposition, 920 F.2d 936 (9th Cir. 1990)

MEMORANDUM^** 

William Lester appeals pro se the district court's denial of his motion to vacate or correct his sentence brought pursuant to 28 U.S.C. § 2255. We affirm.

On January 27, 1987, Lester was convicted of Counts 2, 3 and 4 in a Second Superceding Indictment brought against thirteen defendants. Count 2 charged Lester with conspiring to distribute and distributing cocaine in violation of 21 U.S.C. § 846. Counts 3 and 4 charged Lester with distributing cocaine in violation of 21 U.S.C. § 841(a) (1).

On April 13, 1987, Lester was sentenced to ten years imprisonment on Count 2 and five years imprisonment on both Counts 3 and 4. The two five year terms were concurrent to each other but consecutive to the ten year term. A special parole term of ten years was also imposed as to Counts 3 and 4.

By memorandum disposition filed March 23, 1988, this court affirmed the convictions on Counts 2 and 4 but reversed the conviction on Count 3 on the ground of insufficiency of the evidence. On July 6, 1988, Lester filed a motion pursuant to former Rule 35, Fed. R. Crim. P., to reduce his sentence. On July 17, 1989, the district court reduced Count 4 to two years but specifically noted that " [a]ll other aspects of the sentence on Count 4 shall remain the same." The motion to reduce sentence was denied as to Count 2. On June 28, 1989, Lester filed the instant action under 28 U.S.C. § 2255 (1988). The district court denied the section 2255 motion without comment on July 24, 1990.

Lester timely appealed the denial of his section 2255 motion and this court has jurisdiction under 28 U.S.C. § 1291 (1988). The legality of a sentence is reviewed de novo. United States v. Schiek, 806 F.2d 943, 944 (9th Cir. 1986), cert. denied, 481 U.S. 1032 (1987).

Lester first asserts that our reversal of his conviction on Count 3 mandates a reversal of his conviction on Count 4. Lester's assertion is based on his misconception that concurrent terms are aggregated and treated as a single term. A reversal of Count 3 would mandate a reversal of Count 4 only if the convictions on both counts were based on the same evidence. They were not.

In Count 3, Lester was charged with facilitating a cocaine sale made by his co-conspirator. In Count 4, Lester was charged with selling cocaine in a separate transaction. Although both counts involve the sale of cocaine, they do not cover the same transactions, nor do they cover the same type of conduct. Our reversal of Lester's conviction on Count 3 for insufficiency of the evidence has no bearing on the validity of Lester's conviction on Count 4.

Lester next argues that the district court improperly imposed a ten-year parole term as part of the sentence on Count 4. Lester argues both that he should not have received any parole term and that the ten-year period is too long. Lester did not raise these issues at the sentencing hearing or on direct appeal. A collateral challenge under section 2255 "may not do service for an appeal." United States v. Frady, 456 U.S. 152, 168 (1982).

In order to obtain collateral relief through section 2255, Lester "must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 168.

Lester has not presented any justification for his failure to raise these issues at sentencing or on direct appeal. Lester has not overcome the significant burden placed on a defendant attempting to obtain collateral relief. See id. at 166.

Finally, Lester attempts to challenge the constitutionality of the Sentencing Guidelines as established by Congress in the Sentencing Reforming Act of 1984, 28 U.S.C. §§ 991-98 (1988). Lester was not sentenced under the guidelines, and thus has no standing to challenge them. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).

The district court's order denying Lester's section 2255 motion is affirmed.

AFFIRMED.