United States v. Broomfield , 53 F. App'x 869 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 18 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 02-3150
v. (D. Kansas)
DONALD RAY BROOMFIELD, (01-CV-3328-DES)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the appellant’s brief and appellate record, this panel has
determined unanimously to honor appellant’s request for decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is, therefore, ordered
submitted without oral argument.
Donald Broomfield seeks a certificate of appealability (“COA”) to appeal
the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his conviction
*
This order and judgment is not binding precedent, except under the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.
and sentence. In order for this court to grant a certificate of appealability, a
petitioner must make a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). In addressing the requirements for obtaining a
certificate of appealability under § 2253(c), the Supreme Court stated that a
defendant must show a substantial denial of a constitutional right by
demonstrating that “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
I. BACKGROUND
Mr. Broomfield was convicted on November 18, 1998 of possessing with
intent to distribute a mixture containing cocaine base, in violation of 21 U.S.C. §
841(a)(1). Mr. Broomfield was sentenced to 120 months’ imprisonment and five
years’ supervised release, and his conviction was upheld on direct appeal. See
United States v. Broomfield , 201 F.3d 1270 (10th Cir.), cert. denied, 531 U.S. 830(2000).
Mr. Broomfield filed a pro se motion with the district court pursuant to 28
U.S.C. § 2255 to “vacate, set aside, or correct” his sentence, arguing that (1) he
received ineffective assistance of counsel because trial counsel failed to inform
him of the “safety valve” provision of the sentencing guidelines, see USSG §
-2-
5C1.2, (2) he qualified for a two-point reduction in offense level pursuant to
USSG §2D1.1(b)(6), and (3) the district court erred when it applied 21 U.S.C. §
841, pursuant to Apprendi v. New Jersey , 530 U.S. 466 (2000). The district court
appointed counsel and held an evidentiary hearing on the ineffective assistance of
counsel claim. The district court concluded that none of Mr. Broomfield’s claims
was meritorious and denied Mr. Broomfield a certificate of appealability. On
appeal, Mr. Broomfield raises only the ineffective assistance claim and the
constitutional challenge to 21 U.S.C. § 841.
II. DISCUSSION
Counsel for defendant has filed a brief pursuant to Anders v. California ,
386 U.S. 738 (1967), indicating his belief that the record contains no meritorious
issues for appeal. Defense counsel has also filed a motion requesting leave to
withdraw as counsel, stating his belief that the issues raised on appeal are
frivolous. As required, copies of counsel’s Anders brief and motion to withdraw
were provided to defendant. See id. at 744. Pursuant to our duty under Anders ,
we have conducted an independent review of Mr. Broomfield’s conviction and
sentence. We agree with counsel’s conscientious review of the record and with
his conclusion that the appeal is without merit.
As to Mr. Broomfield’s ineffective assistance claim, Mr. Broomfield claims
that his attorney failed to inform him of the safety valve provisions in USSG §
-3-
5C1.2. Mr. Broomfield’s trial counsel testified at the evidentiary hearing that he
had sent Mr. Broomfield a letter that set out the provisions of § 5C1.2’s safety
valve provisions. Mr. Broomfield testified however, either that he did not recall
reading the paragraph that explained the safety valve provisions or that the copy
of the letter that he received contained no such paragraph. Further hearing
testimony also indicated that Mr. Broomfield was aware that his co-defendant had
cooperated with the government and had received sentencing concessions in
exchange for that cooperation, pursuant to § 5C1.2. The court found that the
defendant had been informed about “the general operation of the safety valve
provision.” Rec. doc. 146, at 6 (Dist. Ct. Order, filed Apr. 4, 2002). We agree
that Mr. Broomfield’s ineffective assistance claim is without merit.
In his second argument on appeal, Mr. Broomfield asserts that, in the wake
of Apprendi , the district court lacked authority to impose a sentence under § 841.
This argument, however, as Mr. Broomfield’s appellate counsel acknowledges, is
foreclosed by our holding in United States v. Cernobyl , 255 F.3d 1215, 1219
(10th Cir. 2001) (joining other circuits in “holding that § 841 remains
constitutionally enforceable” and noting that “ Apprendi in no way conflicts with
the explicit terms of the [§ 841]”). We agree that Mr. Broomfield’s challenge to
the constitutionality of § 841 is without merit.
-4-
III. CONCLUSION
Because Mr. Broomfield has made no substantial showing of the denial of a
constitutional right, we DENY his application for a certificate of appealability
and DISMISS the appeal. We GRANT counsel’s motion to withdraw.
Entered for the Court,
Robert H. Henry
Circuit Judge
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