                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 00-7381
ROBINSON MONTANO-HEREDIA,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
                Barry R. Poretz, Magistrate Judge.
                 (CR-95-221-A, CA-99-1837-A)

                  Submitted: February 28, 2001

                      Decided: April 13, 2001

 Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.



Dismissed by unpublished per curiam opinion.


                           COUNSEL

Robinson Montano-Heredia, Appellant Pro Se. James L. Trump,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                UNITED STATES v. MONTANO-HEREDIA
                              OPINION

PER CURIAM:

   Robinson Montano-Heredia appeals the district court order denying
his motion to vacate and correct his sentence pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 2000). Montano-Heredia was sentenced to a term
of 121-months imprisonment and five years of supervised release for
conspiracy to distribute and to posses with intent to distribute cocaine
and heroin under 21 U.S.C.A. §§ 841, 846 (West Supp. 2000).

   On appeal, Montano-Heredia challenges the district court’s denial
in five respects. Montano-Heredia first asserts that his conviction vio-
lates the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), which
required that drug quantity be submitted to a jury to determine beyond
a reasonable doubt the amounts for which a defendant may be held
responsible at sentencing. However, Montano-Heredia’s 121-month
sentence is well below the statutory maximum sentence of 240
months permitted by § 841(1)(C) for any detectable quantity of
cocaine or heroin. Accordingly, "[b]ecause Apprendi does not apply
to a judge’s exercise of sentencing discretion within a statutory
range," Montano-Heredia’s conviction does not violate Apprendi.
United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000).

   Montano-Heredia further contends that the district court erred in
declining to grant him a downward departure at sentencing on various
bases, including the "safety valve" provision of U.S. Sentencing
Guidelines Manual § 5C1.2 (1998). However, non-constitutional
claims that could have been raised on direct appeal and were not may
not be raised in a collateral proceeding under § 2255. Stone v. Powell,
428 U.S. 465, 477 n.10 (1976). In particular, claims regarding a dis-
trict court’s misapplication of the sentencing guidelines generally are
not cognizable in a § 2255 proceeding because such claims do not
typically involve a miscarriage of justice. See United States v. Pre-
gent, 190 F.3d 279, 283-84 (4th Cir. 1999); United States v. Mikala-
junas, 186 F.3d 490, 495-96 (4th Cir. 1999). Accordingly, because
such claims are generally not cognizable in the context of a § 2255
motion, and Montano-Heredia has not demonstrated that the district
court’s failure to grant him a downward departure constitutes a mis-
                 UNITED STATES v. MONTANO-HEREDIA                     3
carriage of justice, Montano-Heredia’s requests for a downward
departure were properly denied.

   Next, Montano-Heredia contends that he was denied effective
assistance of counsel at sentencing, in that his counsel failed to chal-
lenge the district court’s alleged failure to provide an adequate state-
ment of findings in accordance with Fed. R. Crim. P. Rule 32(c)(1)
in finding Montano-Heredia ineligible for sentencing under the
"safety valve" provision of § 5C1.2. However, because this issue was
not presented to the district court as part of Montano-Heredia’s
§ 2255 motion, it cannot be raised for the first time on appeal. See
Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).

   Fourth, to the extent that Montano-Heredia asserts that it was
improper for the district court to review his habeas petition because
the same judge presided over his trial and sentencing, we note that the
district court followed the procedure adopted by Rule 4 of the Rules
Governing Section 2255 Proceedings ("The original motion shall be
presented promptly to the judge of the district court who presided at
the movant’s trial and sentenced him . . . ."). Therefore, Montano-
Heredia’s claim as to this issue is without merit as well.

   Finally, Montano-Heredia alleges that he failed to receive the Gov-
ernment’s brief in opposition to his motion to vacate and correct sen-
tence, and because he was unable to contest the allegations therein,
the district court’s denial of his motion should be vacated and
remanded. However, because each of Montano-Heredia’s claims were
properly denied as a matter of law, his failure to receive the Govern-
ment’s brief in opposition and notice pursuant to Local Rule 7(J) was
not prejudicial.

   Accordingly, we deny a certificate of appealability and dismiss
Montano-Heredia’s appeal. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid in the decisional pro-
cess.

                                                           DISMISSED
