United States v. Barker

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 24, 2000
• Docket: 98-50250
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50250 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TOMMY WARD BARKER,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CV-137 USDC No. W-88-CR-130-17 - - - - - - - - - - May 17, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Tommy Ward Barker appeals the district court’s denial of his

28 U.S.C. § 2255 motion alleging ineffective assistance of counsel

at sentencing for (1) failing to raise the “parolable” nature of

Barker’s offense, and (2) failing to request a decreased sentence

on the basis of the type of methamphetamine involved. The

Sentencing Guidelines abolished parole. See Golon-Peretz v. United

States, 498 U.S. 395, 399, 401 n.4, 410 (1991); Lightsey v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-50250 -2-

Kastner, 846 F.2d 329, 331-32 (5th Cir. 1988)(the Sentencing Reform

Act abolishes parole); United States v. White, 869 F.2d 822, 826

(5th Cir. 1989)(sentencing guidelines apply to any offense committed

after October 31, 1987, including a conspiracy which began prior to

that date but continued after that date). This court determined on

direct appeal that the guidelines were applicable to this case.

See United States v. Devine, 934 F.2d 1325, 1332-35 (5th Cir. 1990).

This issue is therefore without merit.

Barker argues that because the methamphetamine at issue was

d,l-methamphetamine, and not “pure” d-methamphetamine, he should

not have been sentenced as if the entire amount were d-

methamphetamine, and counsel was ineffective for failing to raise

this issue at sentencing. There is no precedent in this circuit,

however, for using the l-methamphetamine calculation when d,l-

methamphetamine is the substance at issue. On the contrary, expert

testimony in other cases has resulted in scoring d,l-

methamphetamine as if it were a mixture of 50% d-methamphetamine

and 50% l-methamphetamine. See e.g., United States v. Allison, 63

F.3d 350, 353 (5th Cir. 1995); United States v. Acklen, 97 F.3d 750,

751 (5th Cir. 1996). Barker has not established that his sentence

would have been significantly less harsh if counsel had raised this

then-novel sentencing issue. See United States v. Seyfert, 67 F.3d

544, 548-49 (5th Cir. 1995). The district court did not err in

refusing to grant § 2255 relief on this claim.

AFFIRMED.