IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-50079 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO NEVAREZ-BURCIAGA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-91-CR-303 - - - - - - - - - - February 18, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Appellant Rogelio Nevarez-Burciaga appeals from a denial of

his motion to vacate, set aside or correct sentence under

. Appellant’s claims concerning the district

court’s technical application of the Sentencing Guidelines do not

give rise to a constitutional claim. See United States v.

Vaughn,

(5th Cir. 1992). Since appellant did

not raise these issues on direct appeal, they may not be raised

in a collateral proceeding. See United States v. Capua, 656 F.2d

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-50079 - 2 -

1033, 1037 (5th Cir. 1981). Appellant did not receive

ineffective assistance of counsel because he did not show

prejudice arising from the failure to raise these issues on

direct appeal. See Strickland v. Washington,

, 667

(1984).

Nevarez-Burciaga filed a motion to strike appellee’s brief

for being untimely. The record was not filed until September 11,

1996. The Government was sent a briefing notice on September 12,

1996. The Government’s brief was filed 33 days later on October

15, 1996. See Fed. R. App. P. 31(a); 5th Cir. R. 31 I.O.P. The

motion is DENIED.

AFFIRMED.