IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-50708 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BYRON LAMONTE MCCUTCHEON,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-95-CA-228 - - - - - - - - - - February 23, 1998 Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Byron Lamonte McCutcheon, federal prisoner # 60246-080,

requests permission to proceed in forma pauperis (IFP) on appeal

from the district court’s judgment dismissing his

motion. McCutcheon contends that counsel on direct appeal

provided ineffective assistance by failing to challenge the

district court’s estimate of the drug quantity attributable to

McCutcheon, the district court’s alleged failure to make findings

in accordance with Fed. R. Crim. P. 32, and the district court’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 96-50708 -2-

determination of McCutcheon’s sentence by using crack cocaine

rather than powder cocaine. McCutcheon also contends that the

district court erred in determining that his ineffective

assistance claims were procedurally barred and in dismissing his

§ 2255 motion without conducting an evidentiary hearing.

We have reviewed the record, the district court's thorough

opinion, and McCutcheon’s brief and find no nonfrivolous issues

for appeal. See McCutcheon v. United States, No. W-95-Ca-228

(W.D. Tex. Jul. 2, 1996). McCutcheon abandoned any challenge to

his claim that his conviction was barred by double jeopardy and

to the district court’s determination that his sentencing issues

were procedurally barred by failing to assert and brief the

issues in this court. See Hobbs v. Blackburn,

(5th Cir. 1985)(errors not raised and not briefed on appeal

are abandoned).

As an appeal would have no merit, the motion for leave to

proceed IFP is DENIED. See Carson v. Polley,

(5th Cir. 1982). The appeal is DISMISSED. See 5th Cir. R. 42.2.

IFP DENIED. APPEAL DISMISSED.