UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 97-3227
v.	(D. Kansas)
JAMES HAROLD UNDERWOOD,

Defendant - Appellant.	(D.C. No. 89-CR-40038-3)

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, 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 case is therefore ordered submitted without oral argument.

James Harold Underwood, a federal inmate appearing pro se, requests a certificate of appealability to appeal the district court's dismissal of his motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255. We deny the certificate and dismiss the appeal.

The court will issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). Mr. Underwood argues: (1) the district court erred in enhancing his sentence based on quantities of drugs not alleged in the indictment; (2) the district court deprived him of his Fifth and Sixth Amendment rights to due process and trial by jury by determining sentencing factors by a preponderance of the evidence; and (3) the district court erred in summarily dismissing his § 2255 motion without requiring the government to respond and without affording him an evidentiary hearing.

Mr. Underwood's first two arguments have been previously considered and disposed of by this court on direct appeal.1 See United States v. Underwood, 982 F.2d 426 (10th Cir. 1992). As to Mr. Underwood's first argument, on appeal we held that quantities of drugs associated with offenses for which the defendant is not convicted are properly considered in calculating the base offense level. Underwood, 982 F.2d at 429; see United States v. Rutter, 897 F.2d 1558, 1561-62 (10th Cir. 1990) (holding that drug quantities which were part of the same course of conduct or common scheme or plan as the offense of conviction can be included in the base offense level calculation).2

As to Mr. Underwood's second argument, in his direct appeal we held that the quantity of drugs is not an element of the offense for which Mr. Underwood was convicted, and that "[w]hile the sentencing guidelines account for these factors in calculating the offense level, the Supreme Court has recognized that there is no right to a jury trial on sentencing factors." Underwood, 982 F.2d at 429-30. Thus, his Sixth Amendment argument is unavailing. Also, we recognized that prior circuit precedent "squarely rejected" his Fifth Amendment argument that factors critical to sentencing must be determined beyond a reasonable doubt rather than by the preponderance of the evidence standard. Id. at 429.

Our prior decision is dispositive as to these two arguments, and the district court did not err in dismissing the § 2255 motion as to them. See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (stating that where the court of appeals has previously considered and disposed of issues on direct appeal, a defendant may not raise these issues under § 2255).

Mr. Underwood's third argument, that the district court erred by not holding an evidentiary hearing on his § 2255 motion, is without merit. We review a district court's denial of a § 2255 motion without an evidentiary hearing for abuse of discretion. United States v. Whalen, 976 F.2d 1346, 1348 (10th Cir. 1992). Under § 2255, there is a right to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988). Here, Mr. Underwood's motion and the record conclusively show that his § 2255 motion is meritless and that he is entitled to no relief, and the district court did not abuse its discretion in denying him an evidentiary hearing.3

Accordingly, we find Mr. Underwood's arguments do not make a substantial showing of the denial of a constitutional right. The certificate of appealability is DENIED and the appeal is DISMISSED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge