                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                     _______________________

                           No. 95-40302
                         Summary Calendar
                     _______________________


UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                              versus

SANTIAGO CASIANO, JR.,

                                               Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           (B-94-CV-74)
_________________________________________________________________

                         February 14, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

          The district court dismissed this third petition for

§ 2255 habeas relief on grounds that appellant Casiano had abused

the writ under Rule 9(b) of the Rules Governing § 2255 Proceedings.

In this petition, Casiano again contends that the district court

erred in sentencing him, in a pre-sentencing guidelines offense, to

possessing with intent to distribute over 500 grams of cocaine.   He

asserts, as he did in his first federal habeas petition, that the


    *
       Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
true amount of the cocaine as reflected in DEA lab reports was less

than 500 grams, an amount that would have entitled him to a lesser

sentence.    Having reviewed the record, we agree with the district

court, adopting the magistrate judge's report, that Casiano did not

satisfy the stringent test for filing a successive habeas petition.

McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454 (1991).              We also

reject Casiano’s contention that he was entitled under Fed. R.

Crim. P. 35(a) to relief from an “illegal sentence” based on the

alleged erroneous amount of cocaine included in the violation.

            The abuse of writ finding is easily sustained.           Casiano

previously raised the factual underpinning of this argument in his

first federal habeas petition, and his argument was rejected by

this court in an opinion dated July 20, 1990.                 That he now

characterizes the government’s error in identifying the correct

amount of cocaine as a Brady offense, rather than as a variance or

error in the factual basis for his guilty plea, is of no moment.

The contention is successive.      Casiano may pursue it only if he has

established “cause” for not raising the issue earlier and actual

prejudice.    Saahir v. Collins, 956 F.2d 115, 119 (5th Cir. 1992).

He has not demonstrated "cause" because, as the magistrate judge

noted, Casiano’s previous habeas petition specifically referred to

the   DEA   lab   report,   and   this   court    rejected   his     specific

contention.   We also agree with the magistrate judge’s conclusion,

adopted by the district court, that failure to reconsider Casiano’s

claim would not constitute a “miscarriage of justice.”             Sawyer v.

Whitley, ___ U.S. ___, 112 S.Ct. 2514, 2518 (1992).                This very

narrow   exception   allows   abusive    claims    to   be   heard    if   the
petitioner establishes that under the probative evidence he has a

colorable claim of actual innocence.            Id. at 2519.    No such claim

has been made here.

             The   magistrate   judge    did    not   specifically      rule   on

Casiano’s contention as a Rule 35 motion seeking relief from an

“illegal sentence” imposed before the Sentencing Guidelines took

effect.     Nevertheless, that contention does not succeed.             Our task

under Rule 35(a) is to determine de novo whether the sentence

imposed was illegal, and if so, whether its imposition was an abuse

of discretion.     United States v. Kirkland, 853 F.2d 1243, 1246 (5th

Cir.   1988).        This   test   is    less    stringent     than    that    of

constitutional error in a habeas proceeding, but the error must

still render the sentence illegal.             United States v. Stumpf, 900

F.2d 842, 845 n.2 (5th Cir. 1990).         An illegal sentence includes a

sentence that is “in excess of the permissible statutory penalty

for the crime.”      United States v. Fowler, 794 F.2d 1446, 1449 (9th

Cir. 1986) (citations omitted), cert. denied, 107 S.Ct. 1309

(1987).

             To the extent Casiano makes his Rule 35 contention based

on an error in the interpretation of the government’s lab report on

the weight of the cocaine, he cannot in fact demonstrate that his

sentence was illegal.        First, he specifically admitted to the

district court his guilt in possessing approximately 560 grams of

gross weight of cocaine.        The district court was entitled to rely

on this admission of criminal liability in assessing punishment.

Taylor v. Whitley, 933 F.2d 325, 327 (5th Cir. 1991).                 Second, at

no   time   during    sentencing   did    Casiano     object   to     the   PSR’s
calculation of a gross quantity of 560.5 grams of cocaine, “which

laboratory tested to approximately 440 grams of 91% pure heroin.”

PSR at 3.    In any event, under the law of the case doctrine, this

factual issue has already been resolved against Casiano in his

previous appeal, where this court upheld the finding that he

possessed 560.5 grams of a mixture containing a detectable amount

of   cocaine.        The   law    of     the    case   doctrine   precludes   the

reexamination of issues decided, either expressly or by necessary

implication, in a previous appeal.              Chevron USA, Inc. v. Traillour

Oil Company, 987 F.2d 1138, 1150 (5th Cir. 1993).                   The doctrine

applies    unless,    inter      alia,    the    prior   decision   was   clearly

erroneous and application of the doctrine would work a manifest

injustice.      Paul v. United States, 734 F.2d 1064, 1066 (5th Cir.

1984).    Under the circumstances of this guilty plea proceeding, we

find no manifest injustice.

            For these reasons, the judgment of the district court is

AFFIRMED.
