United States v. Brazier

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 9, 1998
• Docket: 97-3390
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 9 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 97-3390 v. (D.C. No. 97-3186-SAC)

ARTURO BRAZIER, a/k/a Arturo (D. Kan.) Gooding, Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining Appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Appellant, Mr. Arturo Brazier, was convicted of conspiracy to possess with

intent to distribute in excess of five kilograms of cocaine hydrochloride and/or in

excess of fifty grams of cocaine base (crack cocaine), possession with the intent

to distribute one kilogram of cocaine hydrochloride, and use of a communications

facility to facilitate possession with intent to distribute cocaine. Appellant was

sentenced to 188 months incarceration, and his conviction and sentence were

affirmed on appeal. See United States v. Brazier, 85 F.3d 641 (Table), 1996 WL

218605 (10th Cir. May 1, 1996).

After his conviction was affirmed, Appellant filed a motion to vacate his

sentence pursuant to 28 U.S.C. § 2255, contending that he was denied the

effective assistance of counsel guaranteed by the Sixth Amendment to the United

States Constitution. Appellant’s petition alleges that both his trial counsel and

appellate counsel were constitutionally ineffective because they did not raise the

issue of whether the government proved that his crimes involved crack cocaine.

Appellant contends that his counsels’ failure to raise this issue prejudiced him by

subjecting him to the harsher sentence imposed upon those convicted of crimes

involving crack cocaine. The district court denied the section 2255 motion. See

United States v. Brazier, Nos. 93-40003-08-SAC & 97-3186-SAC, 1997 WL

833293, at *7 (D. Kan. Dec. 11, 1997). The district court also denied Appellant a

certificate of appealability. See United States v. Brazier, Nos. 93-40003-08-SAC

-2- & 97-3186-SAC, 1998 WL 80367 (D. Kan. Jan. 5, 1998). Appellant asks this

court to grant him a certificate of appealability and to reverse the decision of the

district court dismissing his section 2255 motion.

To obtain a certificate of appealability, an appellant must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Appellant argues that his Sixth Amendment right to effective

assistance of counsel was violated because his counsel failed to challenge the

sufficiency of the government’s evidence that the cocaine involved in his crimes

was crack cocaine. He claims that this failure prejudiced him because the court

erroneously accepted the presentence report’s finding that the drug involved was

crack cocaine and imposed on Appellant the requisite heightened sentence for

crack cocaine. Appellant asserts that the court’s acceptance of the presentence

report’s finding was erroneous because the government failed to bring forward

sufficient evidence to prove that the substance was in fact crack cocaine. To

establish a claim for ineffective assistance of counsel, one must “make credible

allegations [that] his ‘counsel’s performance was deficient’ and ‘that the

[deficient] performance prejudiced [him].’” Lasiter v. Thomas, 89 F.3d 699, 703

(10th Cir.), cert. denied, U.S. __ , 117 S. Ct. 493 (1996) (quoting Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

Appellant attempts to prove his claims by stating that “[n]o drugs [were]

-3- ever produced to corroborate” the allegation that his crime involved crack

cocaine. Appellant’s Br. at 10. It is not necessary for the government to produce

the drugs involved in the alleged crimes at trial or at sentencing in order to obtain

a conviction or enhance a sentence. See United States v. Cantley, 130 F.3d 1371,

1379 (10th Cir. 1997), cert. denied, U.S. , 118 S. Ct. 1098 (1998); United

States v. Silvers, 84 F.3d 1317, 1327 (10th Cir. 1996), cert. denied, __ U.S. __ ,

117 S. Ct. 742 (1997). Contrary to Appellant’s assertions, it is not necessary for a

chemist or scientist to testify at trial in order to establish the type of drug

involved. See United States v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th

Cir.) (affirming the principle that lay testimony and circumstantial evidence may

be sufficient for a jury to find “that a substance was identified beyond a

reasonable doubt”), cert. denied, 495 U.S. 939 (1990). Additionally, Appellant

offers no evidence to prove that the drug at issue was not crack cocaine but some

other form of cocaine. See Cantley, 130 F.3d at 1379 (“Finally, though we

recognize the burden is on the government to prove the substances were crack

cocaine, [defendant] has presented no evidence whatsoever to show that the

substances were not crack cocaine.”).

When determining a defendant’s sentence, the trial court may rely on any

testimony which has a “sufficient indicia of reliability.” United States v.

Beaulieu, 893 F.2d 1177, 1179-80 (10th Cir.), cert. denied, 497 U.S. 1038 (1990).

-4- At the sentencing hearing, the government introduced a statement by Appellant

that he provided 500 grams of crack cocaine to a co-conspirator. See Brazier,

1996 WL 218605, at **5 & n.6. Although this statement was offered to impeach

Appellant’s credibility, it was sufficient for the trial court to have properly found

that the drugs involved were crack cocaine. The trial court also reasonably relied

on trial testimony identifying the drug at issue as crack cocaine, testimony which

this court discussed in its review of Appellant’s challenge, on direct criminal

appeal, to the quantity of drugs at issue. See id. at *4; United States v. Hooks, 65

F.3d 850, 854 (10th Cir. 1995) (“In essence, Defendant requests we reverse the

district court because [the witness] was not a believable witness. This we will not

do.”), cert. denied, 516 U.S. 1083 (1996).

We conclude that Appellant’s allegations of ineffective assistance of

counsel are insufficient to establish a claim under the standard established by

Strickland. See Lasiter, 89 F.3d at 703-04. Appellant has not provided a legally

meritorious argument that his counsels’ performance prejudiced him. Therefore,

because Appellant has not made a “substantial” showing that he was denied his

right to effective assistance of counsel, we DENY him a certificate of

appealability. We AFFIRM the decision of the district court dismissing

-5- Appellant’s petition pursuant to section 2255.

AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge

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