United States v. King

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 28 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-1232
MIKE KING, also known as Lamont (D.C. No. 97-N-1924)
Pennomon, also known as Robert Woods, (D. Colo.)
also known as Eric Larry Goins, also
known as Lamont Pennon,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HENRY, BRISCOE and MURPHY, Circuit Judges.
After examining the briefs and 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(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Defendant Mike King seeks a certificate of appealability to appeal the denial of his
*
This order and judgment is not binding precedent, except under the doctrines of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.
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Because he has
failed to make a “substantial showing of the denial of a constitutional right” as required
by 28 U.S.C. § 2253(c)(2), we deny a certificate of appealability and dismiss the appeal.
King pled guilty to one count of distribution and possession of crack cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a) and § 841(b)(1)(A)(iii), and was
sentenced to 292 months’ imprisonment. It is uncontroverted that, because King’s
offense involved crack cocaine, his sentence was significantly higher than it would have
been if the offense involved cocaine powder or a non-crack form of cocaine base. See
U.S.S.G. § 2D1.1(c) & Note D (1998); United States v. Kissick, 69 F.3d 1048, 1052 (10th
Cir. 1995) (discussing the 1993 amendment to § 2D1.1(c) that clarified the meaning of
the term “cocaine base”). Following this court’s affirmance of his sentence on direct
appeal, United States v. King, No. 96-1040, 1996 WL 470321 (10th Cir. Aug. 20, 1996),
King filed a § 2255 motion to vacate, set aside, or correct his sentence. In support of his
motion, King argued that his trial counsel was ineffective for failing to object to the
enhanced sentence or to require the government to prove that the controlled substance
involved in the offense was “crack cocaine.” The district court rejected King’s motion,
concluding “that the substance used in calculating defendant’s base offense level was
crack cocaine, that counsel was not ineffective for not arguing otherwise, and that
defendant has not demonstrated the prejudice necessary to prevail” on his ineffective
assistance claim. App. at 27.
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To obtain relief on his § 2255 motion on the basis of ineffective assistance of
counsel, King must show a constitutionally deficient performance by his counsel and that
prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687 (1984). King
contends there was nothing in the record demonstrating that the substance for which he
was sentenced was crack cocaine. Thus, King argues, his counsel “knew or should have
known that the failure of the government to meet its burden under the guideline definition
of ‘crack’ warranted a guideline sentence for powder cocaine.” Aplt. Br. at 10.
After reviewing the record on appeal, we agree with the district court that King has
failed to establish deficient performance or prejudice. During his change-of-plea hearing,
King was asked by the district court to describe the conduct that formed the basis of his
plea. King responded, under oath, that he “had packages sent through mail to” a friend’s
house, that he “flew there the day before . . . and . . . received the package, signed for it,
and on that day . . . [was] arrested.” App. at 53. When asked by the district court what
the package contained, King responded, again under oath, that it contained “506 grams”
of “[c]rack cocaine.” Id. at 54. King’s admissions thus “relieve[d] the government of any
burden it had at sentencing to show that the drug involved was crack” cocaine, and King’s
attorney was not ineffective for failing to put the government to its burden. United States
v. Gray, 182 F.3d 762, 768 (10th Cir. 1999) (rejecting similar ineffective assistance
claim).
King’s request for a certificate of appealability is DENIED and the appeal is
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DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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