United States v. Whitmore

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 4, 1999
• Docket: 98-5129
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 4 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-5129 (D.C. No. 97-CV-51-E) ANDREW JACKSON WHITMORE, (N.D. Okla.) II,

Defendant-Appellant.

v. No. 98-5133 (D.C. No. 97-CV-249-E) KENNETH N. POWELL, (N.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , McKAY , and LUCERO , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

Andrew Whitmore and Kenneth Powell were codefendants in a

multi-defendant trial and were convicted of conspiracy to distribute marijuana

in violation of 21 U.S.C. § 846. They were sentenced to 360 and 292 months,

respectively, followed by five-year periods of supervised release. Their

convictions and sentences were affirmed on appeal. United States v. Powell ,

982 F.2d 1422 (10th Cir. 1992). Both defendants filed motions pursuant to

28 U.S.C. § 2255 to vacate, correct, or set aside their sentences. The district

court denied the motions and denied their requests for a certificate of

appealability.

Both defendants have applied for a certificate of appealability in order to

appeal the district court’s denial of their § 2255 motions. Because neither

defendant makes a substantial showing of the denial of a constitutional right,

see 28 U.S.C. § 2253(c)(2), we must deny their applications for certificates of

-2- Defendant Whitmore makes the following arguments on appeal: (1) he

received ineffective assistance of counsel because his attorney did not object to

the instruction to the jury regarding the elements of conspiracy and did not move

to suppress the testimony of witnesses who were promised leniency in exchange

for their testimony; (2) the district court incorrectly calculated the quantity of

drugs for sentencing purposes; and (3) the district court erred in enhancing his

sentence for possession of a firearm. Defendant Powell makes two arguments

on appeal: (1) his counsel was ineffective for failing to object to testimony by

witnesses who were offered leniency in exchange for their testimony; and (2) the

district court erred in basing his sentence on the quantity of drugs calculated in

the pre-sentence investigation report because that calculation was inaccurate.

To prevail on a claim of ineffective assistance of counsel, a defendant must

show that his attorney’s performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced his defense. See

Strickland v. Washington , 466 U.S. 668, 687-88 (1984). We have reviewed the

jury instruction objected to by defendant Whitmore, and we agree with the district

court that failure to object to the instruction did not constitute deficient

performance by defendant’s attorney because the instruction accurately stated the

necessary elements of conspiracy. Further, even if the instruction had warranted

objection, there was no prejudice. See Powell, 982 F.2d at 1430 (holding that

-3- there was more than sufficient evidence to connect defendant Whitmore to the

conspiracy).

Both defendants argue that their attorneys were ineffective because they did

not move to suppress the testimony of witnesses who testified in exchange for

leniency. Neither defendant raised this argument before the district court, and we

will not consider it for the first time on appeal. See Walker v. Mather (In re

Walker) , 959 F.2d 894, 896 (10th Cir. 1992). We note, however, that defendants’

argument has been foreclosed by this court’s en banc decision in United States v.

Singleton , 165 F.3d 1297, 1298 (10th Cir.), petition for cert. filed (March 31,

1999) (No. 98-8758).

Next, both defendants complain that the district court erred in calculating

the quantity of drugs used to arrive at their sentences under the sentencing

guidelines. On direct appeal, defendants argued that the drug quantity was

miscalculated as a result of the district court adopting the probation officer’s

estimate based on an average amount over two years. We considered defendants’

argument alleging error in the drug quantity calculation, and we held that we

would “not disturb the district court’s quantity determination.” Powell , 982 F.2d

at 1435. The district court was correct in finding that this claim cannot be

considered in either defendants’ § 2255 proceeding because it was addressed on

direct appeal. See United States v. Cox , 83 F.3d 336, 342 (10th Cir. 1996).

-4- Finally, defendant Whitmore alleges error in the district court’s application

of a two-point enhancement under the sentencing guidelines for possession of a

firearm. Defendant did not raise this argument in his direct appeal. We agree

with the district court that this claim is procedurally barred because it should have

been raised on direct appeal. See Cox , 83 F.3d at 341. 1

Neither defendant has made a substantial showing of the denial of

a constitutional right, and, therefore, their applications for a certificate of

appealability are DENIED. Accordingly, the appeals in both 98-5129 and

98-5133 are DISMISSED. Defendant Powell’s motion to proceed without

prepayment of fees or costs is DENIED as moot. The mandate shall issue

forthwith.

Entered for the Court

John C. Porfilio Circuit Judge

1 In his reply to the government’s response to his § 2255 motion before the district court, defendant Whitmore argued that ineffective assistance of his counsel was the cause for his failure to raise the firearm enhancement issue on direct appeal. On appeal, however, defendant makes a straight argument that the district court erred in accepting the witness testimony upon which the enhancement was based, and, therefore, the enhancement was error. He does not contend that he failed to raise the issue because his counsel was ineffective.

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