United States v. Levi ( 1997 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    DEC 19 1997
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 97-6166
    v.
    (D.C. No. CR-93-234-C)
    (W.D. Okla.)
    STANLEY LAVELL LEVI,
    Defendant-Appellant.
    ORDER AND JUDGMENT         *
    Before BRORBY , EBEL , and KELLY , Circuit Judges.
    Defendant-Appellant Stanley Lavell Levi challenged his sentence by filing
    a motion under 
    28 U.S.C. § 2255
     claiming ineffective assistance of counsel. The
    district court denied Levi's motion and we affirm.
    *
    After examining appellant’s brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the determination
    of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    BACKGROUND
    On November 17, 1994, Stanley L. Levi ("Levi") was indicted on nine
    criminal counts, including one count of conspiracy to possess with intent to
    distribute and conspiracy to distribute cocaine base, five counts of interstate
    travel in aid of racketeering, and three counts of possession with intent to
    distribute cocaine base. On May 9, 1994, Levi pled guilty under a plea agreement
    to one count of possession with intent to distribute approximately 3 kilograms of
    cocaine base in violation of 
    21 U.S.C. § 841
    (a)(1).
    Based on evidence gathered from other individuals involved in Levi's drug
    trafficking activities, the presentence report concluded that the cocaine base in
    Levi's possession at the time of his arrest constituted "crack" cocaine for purposes
    of sentencing under section 2D1.1 of the United States Sentencing Guidelines (the
    "Guidelines"). The presentence report also concluded that Levi was responsible
    for distributing in excess of 15 kilograms of cocaine base and used the 15
    kilogram figure in the calculation of Levi's base offense as relevant conduct under
    U.S.S.G. § 3B1.3. The presentence report determined Levi's offense level under
    the Guidelines to be 38, but recommended a two-level downward adjustment for
    Acceptance of Responsibility credit. The presentence report calculated the
    sentence range at 210 to 262 months imprisonment based on a final offense level
    of 36 and a criminal history category of II.
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    Levi, through counsel, objected to each paragraph in the presentence report
    which stated that the cocaine base involved in the offense was crack cocaine.
    Despite Levi's objections, the district court concluded that adequate evidence
    supported the factual findings made in the presentence report, and the district
    court adopted those findings. The district court then sentenced Levi to 210
    months imprisonment on January 24, 1995.
    We affirmed Levi's conviction and sentence on direct appeal in       United
    States v. Levi , No. 95-6194, 
    1996 WL 194905
     (10th Cir. Apr. 23, 1996)
    (unpublished). On December 30, 1996, Levi filed a Motion to Set Aside or
    Correct Sentence under 
    28 U.S.C. § 2255
    . The district court denied Levi's motion
    in an order dated April 29, 1997. Levi now appeals.
    DISCUSSION
    The district court had jurisdiction to consider Levi's petition under 
    28 U.S.C. § 2255
    . Because Levi filed his motion in district court after April 24,
    1996, the certificate of appealability requirements under the Antiterrorism and
    Effective Death Penalty Act, 
    28 U.S.C.A. §§ 2254-66
     (1996), apply to Levi's
    appeal. The district court did not issue a certificate of appealability.
    Nevertheless, we believe that Levi's appeal merits our review, and we hereby
    issue a certificate of appealability for the issues discussed below.
    -3-
    Levi raises two arguments on appeal. First, he challenges his sentence as a
    violation of his due process rights. Second, he claims ineffective assistance of
    counsel both at trial and on the direct appeal of his sentence and conviction. We
    address each argument in turn.
    Note (D) to section 2D1.1 of the Guidelines clarifies that "'Cocaine base,'
    for the purposes of this guideline, means 'crack.' 'Crack' is the street name for a
    form of cocaine base, usually prepared by processing cocaine hydrochloride and
    sodium bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G.
    § 2D1.1, note (D) (1995). Levi contends that because he only pled guilty to
    possession with intent to distribute cocaine base, when the court sentenced him
    for possession with intent to distribute crack cocaine it violated his constitutional
    rights to due process. However, Levi did not present this argument on direct
    appeal. His failure to raise the issue on direct appeal bars him from presenting
    the issue in his section 2255 motion unless "he can show cause excusing his
    procedural default and actual prejudice resulting from the errors of which he
    complains, or can show that a fundamental miscarriage of justice will occur if his
    claim is not addressed."   United States v. Cook , 
    997 F.2d 1312
    , 1320 (10th Cir.
    1993). As a result, we only need consider Levi's ineffective assistance of counsel
    claim because that claim is the sole cause Levi advances for failing to include on
    direct appeal the issues now presented in his 2255 motion.
    -4-
    Levi argues that his defense counsel should have contested the sentence on
    the grounds that crack cocaine and cocaine base are not identical and that Levi
    only pled guilty to possession of cocaine base, not of crack cocaine.       See, e.g. ,
    United States v. Munoz-Realpe , 
    21 F.3d 375
    , 377-78 (11th Cir. 1994) (sentence
    enhancements under section 2D1.1 of the Guidelines related to trafficking of
    "cocaine base" only apply to cocaine that qualifies as "crack" cocaine). To
    establish a claim of ineffective assistance of counsel, "a defendant must show (1)
    that his attorney's performance was deficient and (2) that the deficient
    performance prejudiced his defense."       Strickland v. Washington , 
    466 U.S. 668
    ,
    687 (1984). "Under the prejudice aspect of          Strickland we inquire whether 'there
    is a reasonable probability that, but for counsel's unprofessional errors, the result
    of the proceeding would have been different.'"         Rogers v. United States , 
    91 F.3d 1388
    , 1392 (10th Cir. 1996) (quoting      United States v. Kissick , 
    69 F.3d 1048
    ,
    1055 (10th Cir. 1995)),    cert. denied , 
    117 S. Ct. 1000
     (1997). We find that Levi's
    claim fails to satisfy the prejudice prong of the      Strickland test. Thus, we do not
    address the question of whether Levi's counsel acted improperly by failing to raise
    the issue.
    The government only needed to prove by a preponderance of the evidence
    that the cocaine base in Levi's possession was in fact crack cocaine for sentencing
    purposes under the Guidelines.      United States v. Adams , 
    125 F.3d 586
    , 592 (7th
    -5-
    Cir. 1997). We review "the sentencing court's factual findings under a clearly
    erroneous standard."   Id. at 578. The presentence report included extensive
    evidence that Levi possessed crack cocaine. Levi offers no evidence to support
    his contention that he did not possess crack cocaine. Thus, this record establishes
    that Levi possessed crack cocaine, and Levi cannot show how he was prejudiced
    by counsel's failure to raise the issue on direct appeal.
    Levi also objects to the type of evidence in the presentence report
    describing the seized cocaine base as crack cocaine. Specifically, he claims that
    the presentence report includes inadmissible hearsay evidence that should not
    have been considered by the district court when it adopted the presentence report's
    findings that Levi possessed crack cocaine. Nevertheless, the district court "may
    consider any reliable information, including hearsay," to evaluate a defendant's
    criminal conduct for sentencing purposes.     United States v. Mays , 
    902 F.2d 1501
    ,
    1503 (10th Cir. 1990). Thus, any objection by Levi's counsel on this point also
    would not have changed the final disposition of Levi's sentence.
    For these reasons, we AFFIRM the order of the district court.
    The mandate shall issue forthwith.
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
    -6-