                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2106
                                    ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
Carlos Enrique Perales, also known     *
as Octavio Perales,                    *     [PUBLISHED]
                                       *
            Appellant.                 *
                                  ___________

                            Submitted: March 30, 2000
                                Filed: May 17, 2000
                                    ___________

Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                          ___________

HANSEN, Circuit Judge.

       Carlos Enrique Perales was convicted in September of 1990 in California state
court of possessing chemicals with the intent to manufacture methamphetamine, and
he was sentenced to three years imprisonment. He was paroled in November of 1991.
Subsequently, he was convicted in federal court of distributing methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), and of conspiring to distribute methamphetamine,
in violation of 21 U.S.C. § 846. The distribution offense occurred in January of 1992,
and the conspiracy spanned from January of 1983 through January of 1993. The
district court1 treated as relevant conduct the methamphetamine Perales would have
been able to manufacture in the California offense and sentenced him to 372 months
imprisonment and 5 years supervised release. The court later granted Perales’s motion
to reduce his sentence on the basis of Amendment 505 to the Sentencing Guidelines
and resentenced him to 290 months imprisonment.

      Perales subsequently filed this 28 U.S.C. § 2255 motion claiming, inter alia, that
he was entitled to credit under U.S. Sentencing Guidelines Manual § 5G1.3(b) and
comment. (n.2) (1993) against his federal sentence for the time (approximately thirteen
months) he served in state custody on the California conviction. The district court
denied his motion, and an administrative panel of this court granted a certificate of
appealability on the issue.

       Perales failed to raise his present Sentencing Guidelines misapplication claim on
direct appeal, and thus his claim cannot be brought properly in a § 2255 proceeding
unless he meets one of three possible exceptions to the rule that ordinary questions of
guideline interpretation not raised on direct appeal do not present cognizable § 2255
claims. See Auman v. United States, 67 F.3d 157, 160-61 (8th Cir. 1995). The first
method by which Perales could raise his otherwise procedurally defaulted
nonconstitutional, nonjurisdictional, run-of-the-mill Sentencing Guidelines
misapplication claim in a § 2255 proceeding would be to assert his attorney's failure to
make the U.S.S.G. § 5G1.3 credit-for-time-served argument at sentencing or on direct
appeal as an independent stand-alone ineffective assistance of counsel claim alleging
a violation of his Sixth Amendment right to counsel. See Anderson v. United States,
25 F.3d 704, 706 (8th Cir. 1994). Perales did so below in the district court, but the
district court ruled against him, finding that Perales had no basis for his ineffective
assistance of counsel claims. No certificate of appealability was granted on the Sixth


      1
        The Honorable Charles R. Wolle, then Chief Judge, United States District Court
for the Southern District of Iowa.
                                          -2-
Amendment issue, and we decline to issue one now. Accordingly, this method of
attacking his sentence is presently foreclosed to Perales. See Fields v. United States,
201 F.3d 1025, 1026 n.2 (8th Cir. 2000) (issues beyond scope of certificate of
appealability are not properly before court).

       The second exception is for cases involving a sentence in excess of the maximum
authorized by statute, which is not applicable in this case because the claim involves
a "garden-variety" Sentencing Guidelines application issue. See Auman, 67 F.3d at
161. Furthermore, there is no claim, nor would there be any merit to any such claim,
that Perales's sentence of 290 months exceeds the maximum sentence of life in prison
authorized for distributing 10.38 kilograms of actual methamphetamine. See 21 U.S.C.
§ 841(b)(1)(A)(viii). (We note that the district court also treated as relevant conduct
for sentencing purposes 79.83 kilograms of actual methamphetamine Perales would
have been able to manufacture in the California offense and 4.536 kilograms of
methamphetamine of an unknown purity also involved in the conspiracy.)

       The third possible exception is for Sentencing Guidelines claims that rise to the
level of a "miscarriage of justice." See Auman, 67 F.3d at 161. Just as in Auman,
however, we need not address whether this is an allowable exception under § 2255,
because we hold that there is no miscarriage of justice in this case. Perales is not
entitled to the credit he claims under U.S.S.G. § 5G1.3(b) and Application Note 2.
Those provisions do not apply to him because he committed the instant distribution
offense and part of the instant conspiracy offense while he was on parole for his
California conviction. See U.S. Sentencing Guidelines Manual § 5G1.3(a) (applicable
if defendant committed instant offense while serving prior undischarged term of
imprisonment; instant sentence shall be imposed to run consecutively to prior
undischarged term), (b) (applicable only if subsection (a) does not apply), and
comment. (n.2) (applicable to subsection (b) cases); United States v. Jones, 195 F.3d
379, 383 (8th Cir. 1999) (subsection (a), not subsection (b), applies if defendant
commits instant offense while on parole for prior offense; if instant offense is

                                          -3-
conspiracy, subsection (a) applies if defendant commits part of conspiracy while on
parole for prior offense). There can be no miscarriage of justice exception when there
is no merit to Perales's claim, and therefore his motion for § 2255 relief was correctly
denied.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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