                                  ___________

                                  No. 95-3936
                                  ___________

Yoganand Premachandra,                 *
                                       *
     Petitioner-Appellant,             *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Eastern District of Missouri.
United States of America,              *
                                       *
     Respondent-Appellee.              *
                                  ___________

                    Submitted:    September 12, 1996

                         Filed:   November 21, 1996
                                  ___________

Before LOKEN, HEANEY, AND JOHN R. GIBSON, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     After pleading guilty to two counts of armed bank robbery, Yoganand
Premachandra was sentenced to fifty-one months in prison, the bottom of his
Guidelines range, and three years of supervised release.      He appealed, and
we affirmed the conviction and sentence.        United States v. Premachandra,
32 F.3d 346, 349 (8th Cir. 1994).     Premachandra now appeals the district
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court's order denying his motion to vacate his conviction or reduce his
sentence under 28 U.S.C. § 2255.        Premachandra argues that his trial
counsel was ineffective, his plea was involuntary, and the district court
failed to advise him of the consequences of supervised release before he
pleaded guilty.   We affirm.




     1
      The HONORABLE DONALD J. STOHR, United States District Judge
for the Eastern District of Missouri.
     1.    Premachandra first argues that his trial counsel was ineffective
in failing to adequately investigate a potential insanity defense before
urging Premachandra to plead guilty.    Premachandra has two serious mental
illnesses, obsessive compulsive disorder and bipolar affective disorder.
Prior to trial, he was examined by mental health professionals at the
Federal Medical Center in Springfield, Missouri.    They opined that he was
competent to stand trial and not legally insane at the time of the
robberies.    Premachandra then pleaded guilty to the robbery offenses.


     The government's response to this § 2255 motion included trial
counsel's lengthy affidavit, which explained that before the change of plea
counsel consulted with Premachandra's treating psychiatrist and other
mental health professionals and learned that none could support an insanity
defense.     Counsel also discussed the option of an insanity defense with
Premachandra and his parents; the family did not favor that option because
of the likelihood that such a defense, if successful, would lead to an
indefinite psychiatric confinement.     Premachandra did not reply to this
affidavit and presented no new evidence of insanity.     Thus, the district
court properly rejected this claim.    See Sidebottom v. Delo, 46 F.3d 744,
753 (8th Cir.), cert. denied, 116 S. Ct. 144 (1995).


     2.    Premachandra next argues that his guilty plea was involuntary
because counsel incorrectly advised that he would not serve a lengthy
prison term if he pleaded guilty and need not worry about an error in the
stipulation of facts that accompanied the plea.2     However, Premachandra
expressly acknowledged at the change-of-plea hearing that he could receive
a sentence of up to twenty-five years in prison, that his sentence would
not be determined until a presentence report had been prepared, that he was
bound by




     2
      The alleged error was in failing to recite that Premachandra
used a toy gun in one of the robberies. As our prior opinion made
clear, making this change to the stipulation would not have
affected his sentence. See 32 F.3d at 349.

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his plea even if he received a longer sentence than expected, and that he
agreed to the stipulation of facts.    In these circumstances, his plea was
voluntary.     See Thomas v. United States, 27 F.3d 321, 325-26 (8th Cir.
1994); Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir. 1990).


     3.      Premachandra next argues that the district court violated Fed.
R. Crim. P. 11(c)(1) by failing to explain the ramifications of supervised
release before accepting his guilty plea.      This claim was not raised on
direct appeal and is therefore procedurally defaulted.   Premachandra makes
no showing of cause and prejudice that would excuse his procedural default.
Therefore, § 2255 relief is barred.     See Reid v. United States, 976 F.2d
446, 448 (8th Cir. 1992), cert. denied, 507 U.S. 945 (1993), applying
United States v. Frady, 456 U.S. 152, 168 (1982).


     4.      Premachandra next argues that trial counsel was ineffective in
failing to argue for a downward departure under U.S.S.G. § 5H1.3 based upon
Premachandra's mental condition.   Section 5H1.3 provides that "[m]ental and
emotional conditions are not ordinarily relevant in determining whether a
sentence should be outside the applicable guideline range, except as
provided in Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)."
At sentencing, defense counsel urged the court to depart downward under
U.S.S.G. § 5K2.13 because of Premachandra's "significantly reduced mental
capacity."    However, the district court held that a § 5K2.13 departure was
not available because Premachandra's bank robberies were violent offenses.
In denying this § 2255 motion, the court held that counsel's assistance at
sentencing was not ineffective "because no other departure based on mental
condition is available under the guidelines."


     On appeal, Premachandra argues that § 5H1.3 is an independent source
of departure authority, citing Ninth Circuit decisions in United States v.
Garza-Juarez, 992 F.2d 896, 913 (9th Cir. 1993),




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                                       3
cert. denied, 510 U.S. 1058 (1994), and United States v. Roe, 976 F.2d
1216, 1218 (9th Cir. 1992).       However, § 5H1.3 cross references the more
specific departure provisions of Subpart 5K2.              Because Premachandra's
argument for departure is that he suffers from a mental condition that
diminishes his criminal capacity, the district court correctly held that
§ 5K2.13 provides the only basis for departure under our decision in United
States v. Dillard, 975 F.2d 1554, 1555 (8th Cir. 1992), cert. denied, 507
U.S. 962 (1993):


      [T]he   Sentencing   Commission   adequately   considered   the
      circumstances for downward departure based on diminished mental
      capacity when it formulated section 5K2.13, thus foreclosing
      consideration of diminished mental capacity under section
      5K2.0.


Therefore,   Premachandra's     trial    counsel   properly    relied   solely   upon
§ 5K2.13 in urging a downward departure at sentencing.


      5.    Finally, Premachandra argues that the district court erred in
denying him an evidentiary hearing.         We disagree.      After the government
responded to his § 2255 motion with trial counsel's affidavit, Premachandra
moved for an extension of time in which to reply.            The motion was denied,
and Premachandra does not challenge that ruling on appeal.              As a result,
the   record contains no response to counsel's affidavit and no fact
submission to the district court suggesting a need for an evidentiary
hearing.    Thus, any question of an evidentiary hearing has been waived.


      The    district   court    Order    dated    October     23,   1995,   denying
Premachandra's § 2255 motion is affirmed.


      A true copy.


             Attest:


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




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