Victoriano Cabezas, Appellant, v. United States of America, Appellee, 24 F.3d 242 (8th Cir. 1994)

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U.S. Court of Appeals for the Eighth Circuit - 24 F.3d 242 (8th Cir. 1994)

Submitted: April 20, 1994. Filed: May 6, 1994

Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.


Victoriano Cabezas appeals from the district court's1  order denying his 28 U.S.C. § 2255 motion to vacate his sentence. We affirm.

Following a bench trial in 1982, Cabezas was convicted of distributing cocaine, traveling in interstate commerce to promote and facilitate an unlawful activity, and conspiring to distribute cocaine. Cabezas was sentenced to thirteen years incarceration and three years special parole. He did not appeal.

In 1992, Cabezas filed this section 2255 motion to vacate the sentence, arguing he was denied his right to read the presentence report (PSR); his sentence was disparate because it was higher than those of his co-defendants; his waiver of his right to a jury trial was invalid because of his inability to understand English; and he was denied effective assistance of counsel because counsel advised him to waive a jury trial. The district court denied relief.

On appeal Cabezas argues he was sentenced on the basis of false information in his PSR, and counsel was ineffective because he allowed Cabezas to be sentenced based on what counsel knew to be false information. Cabezas also argues the district court should have granted an evidentiary hearing on these issues. Cabezas, however, failed to raise these false-information issues in the district court. Therefore, finding no plain error, we will not consider these arguments. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir. 1993) (court will not consider issue presented for first time on appeal absent plain error resulting in miscarriage of justice), cert. denied, 114 S. Ct. 887 (1994). Also, the district court did not err in denying Cabezas an evidentiary hearing as the record conclusively shows he is not entitled to relief. See United States v. Schmitz, 887 F.2d 843, 844 (8th Cir. 1989) (per curiam); Cates v. Ciccone, 422 F.2d 926, 928-29 (8th Cir. 1970).

Accordingly, the judgment of the district court is affirmed.


The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri, adopting the report and recommendations of the Honorable Catherine D. Perry, United States Magistrate Judge for the Eastern District of Missouri