August 4, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 94-1004

            


                                   PHILLIP S. KING,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                        Before

                             Torruella, Selya and Stahl,
                                   Circuit Judges.
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               Phillip S. King on brief pro se.
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               Donald  K.  Stern, United  States  Attorney,  and Sheila  W.
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          Sawyer, Assistant United States Attorney, on brief for appellee.
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                      Per Curiam.   Appellant, Phillip King, appeals  pro
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            se from a judgment  of the district court denying  his motion

            under 28 U.S.C.    2255 to vacate, set aside,  or correct his

            sentence. In his  opening brief, he  alleges two grounds  for

            relief:   (1) the government  breached the plea  agreement in

            taking  the position  that  the  appropriate offense  section

            under  the  Sentencing Guidelines  is  U.S.S.G.    2A2.2  for

            "aggravated assault"; and (2) the  district court erred as  a

            matter of law by using   2A2.2 to  calculate his base offense

            level.  The  government argues,  inter alia,  that we  should
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            dismiss the  instant appeal  because  appellant's failure  to

            pursue a direct appeal  constitutes a procedural default, and

            appellant has made no showing of "cause and prejudice"  under

            United States v. Frady, 456  U.S. 152 (1982) (applying "cause
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            and  prejudice"  test  to   procedural  defaults  in     2255

            context).    Appellant replies  that  he did  not  appeal his

            sentence  because the  district  court (and  defense counsel)

            failed to advise him of his right to do so, thereby depriving

            him of his right  to a direct appeal.   See Fed. R.  Crim. P.
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            32(a)(2) (imposing a  duty on the sentencing court  to advise

            the defendant of any right to appeal the sentence following a

            guilty plea).  

                      We  bypass  the  issue  of waiver  because  we  are

            persuaded, for the reasons articulated by the district court,

            that  appellant's claims  in  his opening  brief are  without



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            merit.   See, e.g., Murchu v.  United States, 926 F.2d 50, 53
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            n.4 (1st Cir.) (per curiam) (declining to address question of

            procedural   default  where   appellant's      2255   filings

            established that his claim  was meritless), cert. denied, 112
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            S. Ct. 99  (1991).  We do not address appellant's argument in

            his reply brief that  he was deprived of the right  to direct

            appeal because this argument  was neither presented below nor

            raised on appeal in  a timely fashion.  See,  e.g., Sandstrom
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            v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir. 1990) (arguments
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            not  made to the district  court or in  the opening brief are

            waived).   However, our  affirmance of the  judgment below is

            without prejudice to appellant's  right to file a new    2255

            motion on this latter ground.  

                      Affirmed.
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