United States v. Reese

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 5, 1997
• Docket: 97-2181
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit

DEC 5 1997 UNITED STATES COURT OF APPEALS PATRICK FISHER TENTH CIRCUIT Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 97-2181 v. (D.C. No. CIV-97-265-MV) (New Mexico) WILLY REESE,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, 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); 10th Cir. R. 34.1.9. The cause 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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. Willy Reese, a pro se prisoner, brought this habeas corpus action pursuant

to 28 U.S.C. § 2255 alleging ineffective assistance of trial counsel for failure to

object to various aspects of his 78-month sentence for possession with intent to

distribute more than ten grams of methamphetamine and aiding and abetting in

violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(B), and 18 U.S.C. § 2.

The district court adopted the proposed findings and recommendations of the

magistrate judge and dismissed the action with prejudice. Mr. Reese now asks us

to grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1) in order

that he might appeal the district court’s denial of his § 2255 motion.

The Magistrate Judge’s Proposed Findings and Recommended Disposition

sets forth in detail Mr. Reese’s claims and his failure to demonstrate ineffective

assistance. Mr. Reese first asserts he was sentenced for possession of “actual”

methamphetamine without any proof that he possessed other than “regular”

methamphetamine. However, the term “actual” in the Sentencing Guidelines does

not refer to types of methamphetamine, but rather indicates that defendant is to be

sentenced only according to the portion of the substance that is actually

methamphetamine. See U.S.S.G. § 2D1.1, Note B to Drug Quantity Table.

Furthermore, the guidelines applicable to Mr. Reese’s sentencing make no

distinction between types of methamphetamine for purposes of sentencing. See

-2- United States v. Glover, 97 F.3d 1345, 1347 n.2 (10th Cir. 1996); United States v.

Rodriquez, 989 F.2d 583, 587 (2d Cir. 1993).

Mr. Reese next contends that his sentence was improperly enhanced due to

the loaded gun found in his car at the time of his arrest and that he was prejudiced

by his attorney’s failure to object. However, counsel did object to the

enhancement. Moreover, even had his objection been sustained, Mr. Reese’s 78-

month sentence would still have fallen within the sentence range applicable

absent the enhancement. Since Mr. Reese has failed to show either cause or

prejudice for his failure to raise his claims on direct appeal, the claims are

procedurally barred. See United States v. Kahn, 835 F.2d 749, 753-54 (10th Cir.

1987); Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v.

Frady, 456 U.S. 152, 168 (1982).

We conclude that Mr. Reese has failed to demonstrate the denial of a

constitutional right by showing that the issues raised on his appeal are debatable

among jurists, that a court could resolve the issues differently, or that the

questions deserve further proceedings. We DENY the certificate of appealability

and DISMISS the appeal. See Lenox v. Evans, 87 F.3d 431 (10th Cir. 1996),

-3- cert. denied, 117 S. Ct. 746 (1997); United States v. Simmonds, 111 F.3d 737,

746 (10th Cir. 1997).

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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