                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUN 26 1997
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 96-3248
v.
                                                   (District of Kansas)
                                                 (D.C. No. 96-3163-KHV)
RAHEEM MUHAMMAD, aka Ronald
Lamar Gore,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner Raheem Muhammad filed in the district court a Motion for

Modification of Sentence pursuant to 18 U.S.C. § 3582. In his motion,

Muhammad claimed that the sentencing court erred in calculating his criminal

history points by treating related offenses as separate offenses under U.S.S.G. §

4A1.2, thereby increasing his sentencing range from a proper 51 to 63 months to

an improper 63 to 78 months. The district court refused to grant Muhammad the

requested relief, holding as follows: (1) it was without jurisdiction to grant any

relief under 18 U.S.C. § 3582 because Muhammad’s claim that his sentence was

improperly calculated did not fit within any of the three specific grounds for

correction of a sentence set out in § 3582; and (2) treating Muhammad’s pro se

motion liberally as a 28 U.S.C. § 2255 motion, Muhammad was not entitled to

relief because he failed to raise the issue on direct appeal and could show neither

cause nor prejudice resulting from the alleged errors. Muhammad appeals.

      To the extent that Muhammad appeals the district court’s determination that

it was without jurisdiction to correct Muhammad’s sentence under 18 U.S.C §

3582, this court affirms for substantially the reasons stated by the district court in

its Order dated July 8, 1997. See United States v. Blackwell, 81 F.3d 945, 947-47

(10th Cir. 1996) (delineating grounds upon which district court could correct

sentence under § 3582 and noting that unless it acted pursuant to explicit statutory

authority, district court lacked jurisdiction to resentence defendant). To the


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extent that Muhammad appeals the district court’s refusal to grant him relief

pursuant to 28 U.S.C. § 2255, we decline to grant Muhammad a certificate of

appealability and dismiss his appeal.

      This court is required to examine the appeal of a denial of a § 2255 motion

to determine whether the petitioner has made a “substantial showing of the denial

of a constitutional right.” Antiterrorism and Effective Death Penalty Act of 1996

(the “Act”), Pub. L. No. 104-132, 28 U.S.C. § 2253(c). We have held that the

standard for granting a certificate of appealability under the Act is the standard

set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 893 (1983).

Under this standard, a certificate of appealability will issue only where the

petitioner has demonstrated the issues raised by the petitioner are debatable

among jurists of reason, a court could resolve the issues differently, or the

questions presented are deserving of further proceedings. Id.

      A petitioner’s failure to raise an issue on direct appeal will bar the

petitioner from raising the issue in a § 2255 motion “unless he can show cause for

his procedural default and actual prejudice resulting from the alleged errors, or

can show that a fundamental miscarriage of justice will occur if his claim is not

addressed.” United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994).

Muhammad has not even attempted to show cause for his failure to raise the issue

on direct appeal. More important, however, Muhammad cannot show actual


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prejudice or that a fundamental miscarriage of justice would occur if his sentence

were not reduced.

      Muhammad asserts that the sentencing court improperly considered two of

his prior offenses separately and assigned them three criminal history points each

when it should have considered the two offenses as related offenses and awarded

both a total of three criminal history points because the two offenses were

consolidated for sentencing purposes. The problem with Muhammad’s argument

is that he was arrested for the first offense, a robbery, on August 17, 1981, and

the second offense, a forgery, on October 28, 1981. Section 4A1.2 of the United

States Sentencing Guidelines sets out instructions for computing criminal history

points. Application note 3 in the commentary to § 4A1.2 is dispositive. It

provides:

      Prior sentences are not considered related if they were for offenses
      that were separated by an intervening arrest (i.e., the defendant is
      arrested for the first offenses prior to committing the second
      offense). Otherwise, prior sentences are considered related if they
      resulted from offenses that . . . (3) were consolidated for trial and
      sentencing.

Thus, the commentary plainly provides that sentences from offenses that were

consolidated for trial and sentencing are considered related unless they were

separated by an intervening arrest. Because Muhammad’s forgery conviction was

separated from his robbery conviction by an intervening arrest, those offenses

cannot be treated as related under U.S.S.G. § 4A1.2.

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      Because the district court’s resolution of Muhammad’s claim is not

deserving of further proceedings, this court declines to grant him a certificate of

appealability and dismisses his appeal.

      To the extent that Muhammad appeals the district court’s resolution of this

case under 18 U.S.C. § 3582, the judgment of the United States District Court for

the District of Kansas is hereby AFFIRMED. To the extent that Muhammad

appeals the district court’s denial of relief under 28 U.S.C. § 2255, this court

declines to grant Muhammad a certificate of appealability and DISMISSES the

appeal.

                                                ENTERED FOR THE COURT,



                                                Michael R. Murphy
                                                Circuit Judge




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