United States v. Ridley , 16 F. App'x 884 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 1 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3386
(D.C. No. 98-CV-3168-RDR)
VINCENT JEROME RIDLEY, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and MURPHY , Circuit Judges.
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 case is therefore
ordered submitted without oral argument.
Defendant Vincent Jerome Ridley appeals the district court’s denial of his
motion to vacate, set aside, or correct his sentence, brought pursuant to 28 U.S.C.
*
This order and judgment is not binding precedent, except under the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.
§ 2255. Because defendant has not made a substantial showing of the denial of a
constitutional right, we deny his application for a certificate of appealability and
dismiss the appeal.
In July 1997, defendant pled guilty to one count of possessing a controlled
substance with intent to distribute, and in October 1997, he was sentenced to
seventy-eight months’ incarceration. Because the offense involved crack cocaine,
the sentence was significantly higher than it would have been for cocaine powder
or a non-crack form of cocaine base. See U.S. Sentencing Guideline Manual
§ 2D1.1(c)(7) & Note D (1998); United States v. Kissick , 69 F.3d 1048, 1052
(10th Cir. 1995). On May 13, 1999, defendant filed this § 2255 motion, alleging
his trial attorney was ineffective by not objecting to the enhanced sentence or
requiring the government to prove that the controlled substance was “crack
cocaine.” After a hearing, the district court determined that the substance was,
indeed, crack cocaine, and therefore counsel was not ineffective. Defendant
appeals.
Before we may consider this appeal, defendant must obtain a certificate of
appealability by making a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c). Defendant argues there was no evidence from which
the district court could determine that the substance was crack cocaine, and that
the undisputed evidence was that the nature of the substance could not be
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determined simply by looking at it. He argues that this evidence demonstrates he
was deprived of the effective assistance of counsel.
After reviewing the record, we conclude there was more than enough
evidence, including defendant’s own admissions, to support the district court’s
finding that the substance involved was crack cocaine. The district court based
its finding on police testimony that the seized substance was in the form of crack
cocaine; testimony by the chemist who tested the substance that she had never
tested cocaine base in any form other than crack cocaine, that she had never tested
coca paste, and that she usually used the description “white ‘rock’/powder” to
describe crack cocaine; testimony by defendant’s attorney that defendant admitted
selling crack cocaine from his car; and the inconsistency of defendant’s affidavit
stating that the substance was not crack cocaine with his later testimony that he
did not know what the substance was. R. I, doc. 79 at 4.
In addition to the evidence identified by the district court, which in itself
supports the court’s factual finding, defendant clearly admitted that the substance
involved was crack cocaine. Count I of the indictment, to which defendant pled
guilty, charged him with possession of “cocaine base (crack cocaine).” Id. , doc.
1. Further, at the plea hearing, defendant testified under oath that he understood
he was being charged with possessing “crack cocaine,” R. III at 6; that he
understood one of the essential elements of the charge to which he was pleading
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guilty was that the substance was “crack cocaine,” id. at 15; and that after hearing
the government’s proposed proof that he possessed “crack cocaine,” he was
willing to plead to the charge, id. at 16-17. Based on these admissions, the
government was relieved of its burden at sentencing to show that the substance
was crack cocaine, and defendant’s attorney was not ineffective in failing to put
the government to its burden. United States v. Gray , 182 F.3d 762, 768 (10th Cir.
1999) (holding defendant’s guilty plea to indictment specifying that the substance
was “cocaine base ‘crack’” and admissions in petition to plead guilty and at the
plea hearing that substance was “crack” relieved the government of burden at
sentencing and therefore counsel was not ineffective).
Defendant’s motion for a certificate of appealability is DENIED and the
appeal is DISMISSED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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