F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 29 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-5161 (D.C. No. 97-CV-402-E) JAMES MAHAN, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and 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)(2); 10th Cir. R. 34.1(G). 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Defendant James Mahan seeks a certificate of appealability to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or
correct his sentence. Because he has not made a substantial showing of the denial
of a constitutional right as required by 28 U.S.C. § 2253(c)(2), we deny Mahan’s
request for a certificate of appealability (COA) and dismiss the appeal.
Mahan was convicted in 1991 of one count of conspiracy to possess with
intent to distribute a controlled substance (cocaine base) in violation of 21 U.S.C.
§ 846 and sentenced to 360 months’ imprisonment. On direct appeal, he claimed
the trial court relied on incorrect information in the presentence report to
enhance his sentence under U.S.S.G. § 3C1.1 for obstruction of justice, under
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during the commission of a
drug offense, and under U.S.S.G. § 3B1.1(c) for his role as an organizer-leader.
He also claimed there was insufficient evidence to support the conviction and that
his procedural due process rights were violated because the case was referred for
federal, rather than state, prosecution. We upheld his conviction and sentence in
all respects. See United States v. Mahan , No. 91-5054, 1992 WL 64888, **1-2
(10th Cir. March 31, 1992).
In April of 1997, Mahan filed this motion to vacate sentence, claiming he
was denied effective assistance of counsel because counsel failed to investigate
the circumstances regarding the objective of the conspiracy. He argued that his
-2- objective “‘was to have twice as much cocaine to distribute,’” see R. Doc. 31 at
10 (quoting government’s appeal brief at 16), but that the objective of the other
participants was simply to commit a robbery to make some money. See id. He
also contended that the enhanced punishment for cocaine base is unconstitutional
because powder cocaine and cocaine base (or crack) are the same. See id. at
10-14. Lastly, he argued that he was entitled to an evidentiary hearing. See id. at
14-15.
The district court denied the § 2255 motion, see R. Doc. 36 at 5, as well as
defendant’s subsequent application for a COA, see R. Doc. 39 at 2. The court
evaluated the claimed ineffective assistance of counsel claim under the test set
forth in Strickland v. Washington , 466 U.S. 668, 687-97 (1984) (asking whether
attorney’s performance is reasonably effective and whether defendant’s defense
was prejudiced thereby) and determined that counsel’s failure to argue that there
was no meeting of the minds as to the true objective of the conspirators did not
fall below the required objective standard of reasonableness, particularly in view
of the defense strategy (denying any involvement in the alleged conspiracy) and
the testimony of one of the robbery participants that the purpose of the robbery
was so defendant “could get his cocaine and then maybe get some more for free”
-3- because the original drug shipment was supposedly taken by the police. 1 Trial Tr.
p. 50. The court determined that defendant had failed to demonstrate prejudice by
the alleged error of defense counsel “to make the exact argument defendant
outlines.” See R. Doc. 36 at 2-4.
The court further concluded that defendant’s argument that the sentence
enhancement for crack cocaine or cocaine base is unconstitutional was foreclosed
by this court’s decisions in United States v. Thurmond , 7 F.3d 947, 953 (10th Cir.
1993) and United States v. Turner , 928 F.2d 956, 960 (10th Cir. 1991). See R.
Doc. 36 at 4-5.
On appeal defendant claims that the trial court failed to consider his
argument that cocaine base and cocaine powder are one controlled substance
under 21 U.S.C. § 812 in two different forms, but instead determined that 21
U.S.C. § 841 is not unconstitutional. He claims he was denied the effective
assistance of counsel because his attorney did not argue that “21 U.S.C. § 812
does not authorize an enhanced penalty for different forms of cocaine, i.e.,
‘powder cocaine’ and ‘cocaine base. . . .’” Appellant’s Br. at 11(d). As the
district court correctly held, this argument is answered by our decision in
Thurmond , 7 F.3d at 953 (“Finally, cocaine base is simply a different drug than
1 The “police” were in fact the would-be robbers with fake uniforms and identification, who were apprehended, with the cocaine, shortly after taking it from the drug courier.
-4- cocaine power, with a different chemical composition [citing United States v.
Easter , 981 F.2d 1549, 1558 (10th Cir. 1992)]; as a result, Congress can
justifiably provide for different penalties for each.”); see also United States v.
Turner , 928 F.2d at 960 (“[T]he different penalties for cocaine base and cocaine
in its other forms do not violate due process.”). Moreover, the case on which
defendant relies, United States v. Davis , 864 F. Supp. 1303 (N.D. Ga. 1994), is
simply not the law of this circuit. See United States v. Johnson , 934 F. Supp.
383, 386-87 (D. Kan. 1996) (recognizing that in Turner , the Tenth Circuit “has
essentially rejected similar challenges to the one accepted by the court in
Davis .”). We have also upheld the validity of 21 U.S.C. § 812, see United States
v. Barron , 594 F.2d 1345, 1352-53 (10th Cir. 1979), but in any event, § 812 is a
classification statute, not a penalty provision.
Defendant also reargues his claim that he was denied the effective
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 29 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-5161 (D.C. No. 97-CV-402-E) JAMES MAHAN, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and 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)(2); 10th Cir. R. 34.1(G). 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. Defendant James Mahan seeks a certificate of appealability to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or
correct his sentence. Because he has not made a substantial showing of the denial
of a constitutional right as required by 28 U.S.C. § 2253(c)(2), we deny Mahan’s
request for a certificate of appealability (COA) and dismiss the appeal.
Mahan was convicted in 1991 of one count of conspiracy to possess with
intent to distribute a controlled substance (cocaine base) in violation of 21 U.S.C.
§ 846 and sentenced to 360 months’ imprisonment. On direct appeal, he claimed
the trial court relied on incorrect information in the presentence report to
enhance his sentence under U.S.S.G. § 3C1.1 for obstruction of justice, under
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during the commission of a
drug offense, and under U.S.S.G. § 3B1.1(c) for his role as an organizer-leader.
He also claimed there was insufficient evidence to support the conviction and that
his procedural due process rights were violated because the case was referred for
federal, rather than state, prosecution. We upheld his conviction and sentence in
all respects. See United States v. Mahan , No. 91-5054, 1992 WL 64888, **1-2
(10th Cir. March 31, 1992).
In April of 1997, Mahan filed this motion to vacate sentence, claiming he
was denied effective assistance of counsel because counsel failed to investigate
the circumstances regarding the objective of the conspiracy. He argued that his
-2- objective “‘was to have twice as much cocaine to distribute,’” see R. Doc. 31 at
10 (quoting government’s appeal brief at 16), but that the objective of the other
participants was simply to commit a robbery to make some money. See id. He
also contended that the enhanced punishment for cocaine base is unconstitutional
because powder cocaine and cocaine base (or crack) are the same. See id. at
10-14. Lastly, he argued that he was entitled to an evidentiary hearing. See id. at
14-15.
The district court denied the § 2255 motion, see R. Doc. 36 at 5, as well as
defendant’s subsequent application for a COA, see R. Doc. 39 at 2. The court
evaluated the claimed ineffective assistance of counsel claim under the test set
forth in Strickland v. Washington , 466 U.S. 668, 687-97 (1984) (asking whether
attorney’s performance is reasonably effective and whether defendant’s defense
was prejudiced thereby) and determined that counsel’s failure to argue that there
was no meeting of the minds as to the true objective of the conspirators did not
fall below the required objective standard of reasonableness, particularly in view
of the defense strategy (denying any involvement in the alleged conspiracy) and
the testimony of one of the robbery participants that the purpose of the robbery
was so defendant “could get his cocaine and then maybe get some more for free”
-3- because the original drug shipment was supposedly taken by the police. 1 Trial Tr.
p. 50. The court determined that defendant had failed to demonstrate prejudice by
the alleged error of defense counsel “to make the exact argument defendant
outlines.” See R. Doc. 36 at 2-4.
The court further concluded that defendant’s argument that the sentence
enhancement for crack cocaine or cocaine base is unconstitutional was foreclosed
by this court’s decisions in United States v. Thurmond , 7 F.3d 947, 953 (10th Cir.
1993) and United States v. Turner , 928 F.2d 956, 960 (10th Cir. 1991). See R.
Doc. 36 at 4-5.
On appeal defendant claims that the trial court failed to consider his
argument that cocaine base and cocaine powder are one controlled substance
under 21 U.S.C. § 812 in two different forms, but instead determined that 21
U.S.C. § 841 is not unconstitutional. He claims he was denied the effective
assistance of counsel because his attorney did not argue that “21 U.S.C. § 812
does not authorize an enhanced penalty for different forms of cocaine, i.e.,
‘powder cocaine’ and ‘cocaine base. . . .’” Appellant’s Br. at 11(d). As the
district court correctly held, this argument is answered by our decision in
Thurmond , 7 F.3d at 953 (“Finally, cocaine base is simply a different drug than
1 The “police” were in fact the would-be robbers with fake uniforms and identification, who were apprehended, with the cocaine, shortly after taking it from the drug courier.
-4- cocaine power, with a different chemical composition [citing United States v.
Easter , 981 F.2d 1549, 1558 (10th Cir. 1992)]; as a result, Congress can
justifiably provide for different penalties for each.”); see also United States v.
Turner , 928 F.2d at 960 (“[T]he different penalties for cocaine base and cocaine
in its other forms do not violate due process.”). Moreover, the case on which
defendant relies, United States v. Davis , 864 F. Supp. 1303 (N.D. Ga. 1994), is
simply not the law of this circuit. See United States v. Johnson , 934 F. Supp.
383, 386-87 (D. Kan. 1996) (recognizing that in Turner , the Tenth Circuit “has
essentially rejected similar challenges to the one accepted by the court in
Davis .”). We have also upheld the validity of 21 U.S.C. § 812, see United States
v. Barron , 594 F.2d 1345, 1352-53 (10th Cir. 1979), but in any event, § 812 is a
classification statute, not a penalty provision.
Defendant also reargues his claim that he was denied the effective
assistance of counsel because “based on the testimonies of the witnesses at trial,
no reasonable minded jury could have found him guilty of conspiracy to distribute
drugs,” but rather only conspiracy to commit a robbery. Appellant’s Br. at 12(d).
This argument is plainly without merit. Defendant has failed to demonstrate that
his attorney’s performance fell below the objective standard of reasonableness
required under Strickland v. Washington , 466 U.S. at 694 or “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
-5- the proceeding would have been different.” See id. That a threshold purpose of
the cooperating witnesses may have been to rob the drug courier of the cocaine in
no way undermines the charge of conspiracy to possess with intent to distribute
the drug. Rather, the robbery was simply the manner and means employed by the
participants to effect the object and purpose of the conspiracy, which was to
obtain drugs for subsequent distribution.
Counsel’s trial strategy in this case was predicated on Mahan’s claim that
his only involvement with the other participants was his presence on two
occasions when the robbery was planned and discussed. Contrary to Mahan’s
assertions, counsel did argue that there was no meeting of the minds between
Mahan and the cooperating witnesses; moreover, Mahan himself testified that he
never entered into any discussions regarding the robbery.
We have reviewed the record in its entirety and are persuaded that
counsel’s performance was fully within the objective standard of reasonableness
required under Strickland .
-6- Accordingly, because we conclude that Mahan has not made a substantial
showing of the denial of a constitutional right, we DENY his application for a
certificate of appealability and DISMISS his appeal.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-7-