                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 18, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-51177
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

AUDELIO ARZOLA-AMAYA,

                                    Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                      USDC No. 3:87-CR-162-1
                       --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Audelio Arzola-Amaya, federal prisoner # 38898-080, appeals

from the district court’s order partially denying him relief

pursuant to former FED. R. CRIM. P. 35.   Arzola-Amaya moves for

appointment of counsel; his motion is denied.

     Arzola-Amaya contends that the superseding indictment

violated the Ex Post Facto Clause because the criminal conduct

alleged in the continuing criminal enterprise (CCE) count of the

superseding indictment began before the effective enactment date


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-51177
                                -2-

of 21 U.S.C. § 848(b) and that the mandatory life sentence of

§ 848(b) was erroneous because § 848(b) is a sentence-enhancement

provision and that, therefore, the district court erred by

considering one of the overt acts alleged in the superseding

indictment as a separate offense.   He also contends that the

district court erred by failing to instruct the jury that it must

agree unanimously on three specific predicate offenses to convict

him of CCE and by failing to instruct the jury properly regarding

the requirement that he derived substantial income from the CCE.

He further contends that the district court’s failure to arraign

him pursuant to a superseding indictment forced him to go to

trial without adequate notice of the charges against him.

     Arzola-Amaya’s contentions regarding the jury instructions

and the alleged failure to arraign him pursuant to a superseding

indictment are not cognizable under former Rule 35.    See United

States v. Prestenbach, 230 F.3d 780, 782 (5th Cir. 2000).    The Ex

Post Facto Clause is not violated by convictions or sentences for

offenses that began before a statute’s effective date but

continue thereafter.   See United States v. Olis, 429 F.3d 540,

545 (5th Cir. 2005).   The overt acts alleged against Arzola-Amaya

occurred between January 1983 and June 1987.   Application of

§ 848(b) did not violate the Ex Post Facto Clause.    See id.   The

Double Jeopardy Clause is not violated by conviction and

sentencing for a substantive offense that also serves as a CCE

predicate act.   Garrett v. United States, 471 U.S. 773, 793
                           No. 05-51177
                                -3-

(1985).   To the extent that Arzola-Amaya is suggesting that his

sentence violated the Double Jeopardy Clause, that contention is

unavailing.

     AFFIRMED.   APPOINTMENT OF COUNSEL DENIED.
