United States v. Smith

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40687 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERBERT LEE SMITH, III,

Defendant-Appellant.

--------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-98-CV-164 USDC No. G-95-CR-11-1 --------------------- June 14, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Herbert Lee Smith, III, federal prisoner #46227-079, appeals

from the district court’s denial of his motion to vacate,

correct, or set aside his sentence under 28 U.S.C. § 2255. Smith

argues that the Government failed to prove by a preponderance of

the evidence that the offense involved crack cocaine as opposed

to some other form of cocaine base and that his counsel was

ineffective for failing to raise this objection at sentencing.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-40687 - 2 -

We have reviewed the record, the briefs of the parties, and

the applicable law, and we find no reversible error. Smith

failed to present, either in the district court or in this court,

any specific, verified proof that the drug in question was some

form of cocaine base other than crack cocaine. Accordingly, he

cannot show that he has been prejudiced by his attorney’s failure

to raise this issue. See Strickland v. Washington, 466 U.S. 668,

687 (1984); Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).

Although Smith also briefs other issues, our review is

limited to the sole issue specified in the certificate of

appealability granted by the district court. See Lackey v.

Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).

The judgment of the district court is AFFIRMED.