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United States v. Reeves ( 1997 )


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  •                                                                          F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.                                                    No. 96-3419
(D.C. No. 93-CR-10036-01)
DARNELL REEVES,                                         (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges. **
Mr. Reeves, an inmate appearing pro se and in forma pauperis, seeks a
certificate of appealability so as to appeal from the denial of his
    28 U.S.C. § 2255
    motion to vacate, set aside or correct his sentence. Mr. Reeves pled guilty to
distribution of cocaine base,
    21 U.S.C. §§ 841
    (a)(1), 846;
    18 U.S.C. § 2
    , and was
sentenced on November 8, 1993 to 365 months imprisonment and five years
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in 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.
supervised release. His conviction was affirmed on direct appeal where, inter
alia, he contended that trial counsel was ineffective. United States v. Reeves, No.
93-3367,
    46 F.3d 1152
    ,
    1995 WL 13164
     (10th Cir. Jan. 5, 1995). In his present
motion, Mr. Reeves contends that his appellate counsel was ineffective for failing
to argue that trial counsel was ineffective for not challenging the constitutionality
of U.S.S.G. § 2D1.1. That section equates one gram of crack cocaine with 100
grams of powder cocaine. Relying upon Amendment 487 to the Sentencing
Guidelines, Mr. Reeves also contends that the “cocaine base” in question was not
proven to be crack cocaine, and therefore, the substance should have been treated
as cocaine, resulting in a lesser sentence. See United States v. Kissick,
    69 F.3d 1048
    , 1051-53 (10th Cir. 1995) (discussing effect of amendment), cert. denied,
    117 S. Ct. 1008
    ).
Mr. Reeves cannot prove that his appellate counsel’s performance was
deficient or that the claimed omissions prejudiced his defense. See Strickland v.
Washington,
    466 U.S. 668
    , 687 (1984). This circuit has rejected equal protection
challenges to § 2D1.1. See United States v. Williamson,
    53 F.3d 1500
    , 1530
(10th Cir.), cert. denied,
    116 S. Ct. 218
     (1995). Moreover, during the plea
colloquy, Mr. Reeves admitted sending a package of 611 grams of “rock cocaine,”
which he acknowledged was “quite a bit of cocaine, quite a bit of crack.” I R.
doc. 59 at 4 (quoting plea tr.). That the substance in question was crack cocaine
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is corroborated by the unquestioned account in the presentence report. See
    Id.
    doc. 61 at 2-3 (quoting presentence report).
Because Mr. Reeves has not made “a substantial showing of the denial of a
constitutional right,”
    28 U.S.C. § 2253
    (c)(2), we DENY his Application for a
Certificate of Appealability and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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