IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 95-30180
                           Summary Calendar
                        _____________________


          UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

                                          Cross-Appellant,

          v.

          PHILLIP CARMOUCHE,

                                       Defendant-Appellant
                                           Cross-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
              for the Eastern District of Louisiana
                           (94 CA 2972)
_________________________________________________________________
                        (October 20, 1995)
Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Phillip Carmouche pled guilty to a one-count indictment

charging him with possession of cocaine with the intent to

distribute.    The district court ultimately sentenced Carmouche to

a 174-month term of incarceration.    Carmouche sought collateral

review of his sentence by filing a § 2255 motion, alleging

numerous grounds for relief.   The district court granted

     *
      Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
Carmouche's motion on the ground that he was improperly sentenced

as a career offender and reduced his sentence accordingly, but

denied relief on all other grounds.    Carmouche then filed what

was in substance a Rule 59(e) motion to amend or alter the

judgment, requesting reconsideration of some of the other grounds

of relief asserted in his § 2255 motion and a further reduction

of his sentence.    The district court denied the Rule 59(e) motion

and Carmouche appeals the denial of that motion.    Also, the

United States cross-appeals the district court's order granting

Carmouche § 2255 relief.    We affirm in part and vacate in part

the district court's order denying Carmouche's Rule 59(e) motion

and remand for further findings; we reverse the district court's

order granting Carmouche § 2255 relief.



              I.    FACTUAL AND PROCEDURAL BACKGROUND

     On April 24, 1992, Phillip Carmouche ("Carmouche") was

charged in a one-count indictment with possession of cocaine with

the intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Carmouche pled guilty and the district court accepted this plea.

The court initially sentenced Carmouche to a 210-month term of

incarceration, a five-year term of supervised release, and a $50

special assessment.    The guideline range for this sentence was

based on a total offense level of 30 and a criminal history

category of VI.    From this range, the court selected the

particular sentence imposed because it found that Carmouche was a

career offender, pursuant to USSG § 4B1.1.    The court


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subsequently reduced Carmouche's sentence to a 174-month term of

incarceration because it had granted the Government's motion for

a reduction of sentence under Rule 35(b) of the Federal Rules of

Criminal Procedure.

     Carmouche did not file a notice of appeal from this

sentence; however, proceeding pro se and in forma pauperis, he

did file a motion to vacate his sentence pursuant to 28 U.S.C. §

2255.   Specifically, Carmouche alleged that:   1) he was

improperly sentenced as a career offender in light of new case

law; 2) the district court violated Rule 32(c)(3)(D) of the

Federal Rules of Civil Procedure because it did not submit

written findings of fact regarding sentencing; 3) he could not

have conspired with Government informants; 4) the amount of drugs

used for sentencing purposes was inappropriate because he did not

intend to purchase that amount, he was not capable of purchasing

that amount, and he could not have reasonably foreseen the amount

of drugs involved in the transaction; and 5) he should have

received a three-level reduction to his base offense level for

acceptance of responsibility instead of the two-level reduction

he actually received.   Carmouche also alleged that, because of

ineffective assistance of counsel, he should not be procedurally

barred from bringing these claims in a § 2255 motion; however,

Carmouche did not set forth specific allegations of

ineffectiveness.

     Pursuant to a court order, the Government filed an answer to

Carmouche's § 2255 motion on October 14, 1994.    In its answer,


                                 3
the Government asserted that Carmouche's substantive claims were

procedurally barred.   The Government also contended that the

court should not consider Carmouche's ineffective assistance of

counsel claim because he had not alleged specific deficiencies in

his counsel's performance.   Apparently as an alternative argument

on this issue, the Government also pointed out that the failure

of Carmouche's counsel to anticipate the change in the law on the

career offender issue could not support an ineffective assistance

claim, although Carmouche had not made this specific argument in

his motion.

     Carmouche filed a response to the Government's answer on

October 31, 1994.   The record does not indicate whether the

district court had ordered or made allowance for such a response,

but the clerk recorded the filing on the docket and included the

response in the record on appeal.    In this response, Carmouche

recast the substantive arguments he had made in his original §

2255 motion as facts in support of an ineffective assistance of

counsel claim; specifically, Carmouche alleged that his counsel

was ineffective for not making these substantive arguments to the

court at his sentencing.   Carmouche further argued, for the first

time, that his guilty plea was invalid based on counsel's

ineffectiveness in providing him with erroneous information

regarding the probable length of the sentence that he would

receive.   Finally, Carmouche argued that counsel was ineffective

for failing to file a notice of appeal or otherwise pursue a

direct appeal.


                                 4
     The district court held that Carmouche was improperly

categorized as a career offender pursuant to § 4B1.1 and granted

his § 2255 motion in that regard.      The court also stated in a

footnote that, because "the change in the law [regarding the

application of the career offender provisions of the sentencing

guidelines was] so novel as to constitute cause for failure to

raise on direct appeal, the court also finds that it does not

constitute grounds for ineffective assistance of counsel."     The

court further held that Carmouche's substantive arguments

regarding Rule 32, the quantity of drugs used for sentencing

purposes, his alleged inability to conspire with Government

informants, and acceptance of responsibility were "either

frivolous or should have been raised on direct appeal, and that

no cause exist[ed] to allow a collateral attack" regarding those

issues.   The court did not address these other substantive claims

as facts in support of an ineffective assistance of counsel

claim, as Carmouche had alleged in his response.     On January 18,

1995, the court entered judgment, reducing Carmouche's term of

imprisonment to 114 months, but leaving his sentence intact in

all other respects.

     Seven days after the entry of judgment, Carmouche filed a

pleading styled "Motion for Defendant Misunderstanding and

Claerification [sic] also.    28 U.S.C. 2255 Rule 8(b)(3)

Reconsideration."     The crux of this motion was to point out to

the court that Carmouche had also asserted the substantive issues

raised in his initial § 2255 motion as facts in support of an


                                   5
ineffective assistance of counsel claim.       Apparently, Carmouche

was alluding to his response to the Government's answer and the

fact that the court had not addressed any of these substantive

issues in an ineffective assistance context except for its

statement that the change in law on the career offender issue

could not support an ineffective assistance claim.        Carmouche

also argued that the previous reduction of his initial sentence

pursuant to the Government's Rule 35(b) motion should have been

reapplied to reduce the 114-month term of incarceration.

     The district court denied the motion, finding that a 114-

month term of incarceration was proper and that Carmouche was not

entitled to any further relief.        Carmouche appeals the denial of

this motion.   The Government cross-appeals the court's order

reducing Carmouche's sentence.    We address separately each of

these appeals.



                           II.   DISCUSSION

                    A.   The Government's Appeal

     The United States cross-appeals the district court's order

reducing Carmouche's term of incarceration to 114 months.       In

§ 2255 proceedings, we review findings of fact under the clearly

erroneous standard and conclusions of law de novo.        United States

v. Woods, 

, 287 (5th Cir. 1989).

     The district court granted Carmouche's § 2255 motion in this

regard because it found that Carmouche had been improperly

sentenced as a career offender pursuant to USSG § 4B1.1 in light


                                   6
of our subsequent decision in United States v. Bellazerius, 

(5th Cir.), cert. denied, 

(1994).     In

Bellazerius, we held that the Sentencing Commission had exceeded

its authority by including conspiracy offenses within the ambit

of § 4B1.1, and consequently, that section did not allow career

offender enhancements for defendants convicted only of conspiracy

offenses.   

  Applying this holding to Carmouche, the

district court concluded that he should not have been categorized

as a career offender for sentencing purposes and reduced his term

of incarceration to 114 months.

     Since the district court's judgment, however, we have held

that individuals sentenced for conspiracy convictions before

Bellazerius was decided may not later use this holding to vacate

their sentences in a § 2255 motion.    United States v. Bogdon, No.

95-50073, slip op. at 3-4 (5th Cir. July 31, 1995) (unpublished);

United States v. Hixon, No. 95-50003, slip op. at 2-3 (5th Cir.

June 29, 1995) (unpublished); United States v. Williams, No. 94-

50329, slip op. at 9-10 (5th Cir. March 27, 1995) (unpublished).

The rationale of these holdings is that misapplications of the

Sentencing Guidelines are not cognizable in § 2255 motions.

United States v. Segler, 

, 1134 (5th Cir. 1994);

United States v. Faubion, 

, 233 (5th Cir. 1994);

United States v. Vaughn, 

, 368 (5th Cir. 1992).

Accordingly, we hold that Carmouche is not entitled to § 2255

relief based on our holding in Bellazerius.    Unless the district

court grants further relief pursuant to Part II.B of this


                                  7
opinion, Carmouche's original sentence, including his 174-month

term of incarceration, should be reinstated.



                       B.   Carmouche's Appeal

     Carmouche appeals the district court's denial of his "Motion

for Defendant Misunderstanding and Claerification [sic] also.        28

U.S.C. 2255 Rule 8(b)(3) Reconsideration."       In order to determine

the standard under which we review this denial, we must first

decide how to characterize the motion.    Although styled a motion

made pursuant to Rule 8(b)(3) of the Rules Governing Section 2255

Proceedings, this designation is incorrect.      Rule 8(b)(3)

provides that, when a magistrate judge assists the district court

in disposing of a § 2255 motion by making proposed findings and

recommendations, the § 2255 movant may file written objections to

such findings and recommendations.    Sec. 2255 R. 8(b)(3).     In

Carmouche's case, the district court did not enlist the

assistance of a magistrate judge in disposing of the motion, and

furthermore, Carmouche is contesting a final order of the

district court.   Therefore, we must characterize the motion as

being made under another procedural rule.

     We have held that "[a] motion for reconsideration filed

within ten days of judgment is treated as a motion to alter or

amend under Rule 59(e)" of the Federal Rules of Civil Procedure.

Edward H. Bohlin Co. v. Banning Co., 

, 353 (5th Cir.

1993).   The court entered judgment on Carmouche's § 2255 motion

on January 18, 1995.   Carmouche filed his motion for


                                  8
reconsideration on January 25, 1995.       Accordingly, we will treat

Carmouche's motion as a Rule 59(e) motion.

       We review the denial of a Rule 59(e) motion under an abuse

of discretion standard.    

that the district

court's discretion in this regard is "considerable," we have held

that the court must nevertheless "strike the proper balance

between two competing imperatives: (1) finality, and (2) the need

to render just decisions on the basis of all the facts."         

       First, we consider the events which gave rise to Carmouche's

Rule 59(e) motion.    In his original § 2255 motion, Carmouche had

alleged ineffective assistance of counsel in very general terms,

and then only as an excuse for procedural default rather than as

a separate constitutional claim.       Perhaps prompted by the

Government's answer, which noted that Carmouche had not supported

his ineffective assistance argument with allegations of specific

deficiencies in performance, Carmouche filed a response in which

he alleged that he also had a Sixth Amendment claim because his

counsel was ineffective for failing to offer at sentencing the

same substantive arguments he had made in his original § 2255

motion.

       Of the issues presented in Carmouche's response, the only

one explicitly addressed in the court's order on the § 2255

motion was whether the change in the law regarding career

offender status supported an ineffective assistance of counsel

claim; however, the government had also addressed this issue in


                                   9
its answer, and therefore the issue was before the court

independent of Carmouche's response.     The court apparently did

not address any other argument that Carmouche had made in his

response, including his other substantive arguments in the

ineffective assistance context, the validity of his guilty plea,

and his ineffective assistance argument based on his counsel's

failure to file a direct appeal.     In contrast, the court

addressed every argument that Carmouche had properly presented in

his original § 2255 motion.

     The apparent purpose of the first part of Carmouche's Rule

59(e) motion was to point out that, although the district court

had addressed his substantive arguments regarding Rule 32, the

quantity of drugs used for sentencing purposes, his alleged

inability to conspire with Government informants, and acceptance

of responsibility, the court had not considered Carmouche's

position that each of these substantive arguments also supported

a Sixth Amendment ineffective assistance of counsel claim because

his counsel had failed to make these same substantive arguments

at his sentencing.   It is unclear from the district court's Order

and Reasons denying Carmouche's motion whether the court simply

declined to address the merits of Carmouche's ineffective

assistance claim as set forth in his response to the Government's

answer, or addressed the merits and summarily refused relief.

     For instance, the district court may have declined to

address the issues raised in Carmouche's response because it did

not consider the response as properly before it.     The advisory


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committee note to Rule 5 of the Rules Governing Section 2255

Proceedings states:

            There is nothing in § 2255 which corresponds
            to the § 2248 requirement of a traverse to
            the answer. . . . As under Rule 5 of the
            § 2254 rules, there is no intention here that
            such a traverse be required, except under
            special circumstances.

Sec. 

advisory committee's note.    This note also cross

references the advisory committee note to rule 5 of the analogous

§ 2254 rules governing habeas corpus proceedings.    This note also

states that the rules do not provide for a traverse to the answer

and adds:

            In the interests of a more streamlined and
            manageable habeas corpus procedure, [a
            traverse] is not required except in those
            instances where it will serve a truly useful
            purpose. Also, under rule 11 [of the § 2254
            rules] the court is given the discretion to
            incorporate Federal Rules of Civil Procedure
            when appropriate, so civil rule 15(a) may be
            used to allow the petitioner to amend his
            petition when the court feels this is called
            for by the contents of the answer.

Sec. 

advisory committee's note.    The principles

enunciated in this note apply with as much force to the § 2255

rules, which also contain a provision for the discretionary

incorporation of the Federal Rules of Civil Procedure.      See Sec.

.    In this regard, Rule 15(a) of the Federal Rules of

Civil Procedure allows a party to amend his initial pleading

after an answer only with the permission of the court or his

adversary.    Fed. R. Civ. P. 15(a).   Finally, a local rule of the

Eastern District of Louisiana states that motions shall be

accompanied by memoranda, but that "[m]emoranda may not be

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supplemented except with leave of court first obtained."     ULLR

2.05.

     The cumulative import of these rules and notes is that a

§ 2255 movant does not ordinarily have the opportunity to

supplement his original motion with an amendment or a response to

the Government's answer, and even then, the movant may do so only

with leave of court.    Therefore, it is possible that the district

court declined to address the merits of the issues raised in

Carmouche's response because the response was not properly before

the court as a traverse or an amendment of his original motion.

     On the other hand, it is equally possible that the district

court did consider the response as properly before it and, in

ruling on Carmouche's Rule 59(e) motion, summarily refused relief

on the claims presented therein.      In this regard, we note that a

§ 2255 movant proceeding pro se is not an ordinary litigant.        It

is a well-established rule that the briefs and papers of pro se

litigants are to be construed more permissively than those filed

by counsel.   Securities and Exch. Comm'n v. AMX, Int'l, Inc., 

, 75 (5th Cir. 1993); Wiggins v. Procunier, 

,

1320 (5th Cir. 1985).   This rule takes on added significance in

the context of a § 2255 motion, in which the doctrine that

successive motions are disfavored "make[s] it especially

important that the first petition adequately set forth all of a .

. . prisoner's colorable grounds for relief."      McFarland v.

Scott, 

, 2574 (1994) (O'Connor, J., concurring in

the judgment in part) (discussing the need for a comprehensive


                                 12
initial petition in the analogous habeas corpus context).

Finally, the response was filed over two months before the court

ruled on the original motion, giving the court sufficient time to

consider the issues raised in that document.   Therefore, upon

reconsideration of its original order, the district court may

have liberally construed Carmouche's response as an amendment of

his original § 2255 motion and concluded that he was not entitled

to relief on the merits of those additional claims.

     Because it is unclear from the district court's Order and

Reasons denying the Rule 59(e) motion which course of action the

court pursued, we do not feel that review of the court's order in

this regard is appropriate, even under the narrow abuse of

discretion standard.   Rather, we believe that our task would be

better served by vacating that part of the district court's order

denying relief on the issues raised in Carmouche's response and

remanding so that the court can make specific findings of fact

and conclusions of law with respect to whether those issues were

properly before the court and, if so, whether they had merit.

     The second part of Carmouche's Rule 59(e) motion alleged

that the district court should have reapplied the previous

reduction of his initial sentence pursuant to the Government's

Rule 35(b) motion to reduce his 114-month term of incarceration.1


     1
      In his brief, Carmouche also contends that a failure to
reapply the previous Rule 35(b) reduction violates the Double
Jeopardy Clause of the Fifth Amendment. Because Carmouche did
not raise this argument in the district court, he has not
preserved it for appeal. Quenzer v. United States (In re
Quenzer), 

, 165 (5th Cir. 1993).

                                13
In fact, the court stated in a footnote in its order that it did

consider the previous reduction when rendering Carmouche's

sentence and that it credited the facts set forth in the Rule

35(b) motion in arriving at the 114-month term.   Therefore, we

hold that the district court did not abuse its discretion in

denying Carmouche's Rule 59(e) motion for a further reduction of

his sentence.



                        III.     CONCLUSION

     For the foregoing reasons, we AFFIRM in part and VACATE in

part the district court's order denying Carmouche's "Motion for

Defendant Misunderstanding and Claerification also 28 U.S.C. 2255

Rule 8(b)(3) Reconsideration" and REMAND for further findings

with respect to the issues raised in Carmouche's response; we

also REVERSE the district court's order granting Carmouche's

motion to vacate his sentence.




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