United States v. Heacock

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-60594 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALVIN WAYNE HEACOCK,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:95-CV-205 - - - - - - - - - - April 16, 1997 Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Alvin Wayne Heacock, # 09734-042, appeals from the district

court’s order dismissing his motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255. He argues

that Congress exceeded it authority to regulate commerce by

enacting 18 U.S.C. § 1955. Heacock’s claim is without merit. We

have held that § 1955 is valid under the Commerce Clause. See

United States v. Avarello, 592 F.2d 1339, 1345 (5th Cir. 1979).

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 95-60594 - 2 -

For the first time in his reply brief, Heacock argues that § 1955

is unconstitutional in light of United States v. Lopez, 115 S. Ct. 1624, 1634 (1995), because § 1955 does not require a

substantial effect on interstate commerce. This court does not

consider issues raised for the first time in a reply brief. See

United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).

For the first time on appeal, Heacock argues that his

conviction under § 1955 must be vacated because a change in state

law, which occurred between the time the offense was committed

and the time of prosecution, legalized gambling and that counsel

was ineffective for failing to object to the alleged change in

state law. We decline to review Heacock’s arguments because

there is no error that is clear and obvious. See Highlands Ins.

v. National Union Fire Ins., 27 F.3d 1027 (5th Cir. 1994)

(applying the standard of United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 115 S. Ct. 1266 (1995) to civil cases), cert. denied, 115 S. Ct. 903 (1995);

see also Miss. Code Ann. § 97-33-1 (1979).

Heacock’s motion for an expedited appeal and motion to

strike appellee brief are DENIED.

AFFIRMED.