United States v. Reese ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
DEC 5 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-2181
v. (D.C. No. CIV-97-265-MV)
(New Mexico)
WILLY REESE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO 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); 10th Cir. R. 34.1.9. The cause 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This order and judgment is not binding precedent, except under the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, or 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.
Willy Reese, a pro se prisoner, brought this habeas corpus action pursuant
to 28 U.S.C. § 2255 alleging ineffective assistance of trial counsel for failure to
object to various aspects of his 78-month sentence for possession with intent to
distribute more than ten grams of methamphetamine and aiding and abetting in
violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(B), and 18 U.S.C. § 2.
The district court adopted the proposed findings and recommendations of the
magistrate judge and dismissed the action with prejudice. Mr. Reese now asks us
to grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1) in order
that he might appeal the district court’s denial of his § 2255 motion.
The Magistrate Judge’s Proposed Findings and Recommended Disposition
sets forth in detail Mr. Reese’s claims and his failure to demonstrate ineffective
assistance. Mr. Reese first asserts he was sentenced for possession of “actual”
methamphetamine without any proof that he possessed other than “regular”
methamphetamine. However, the term “actual” in the Sentencing Guidelines does
not refer to types of methamphetamine, but rather indicates that defendant is to be
sentenced only according to the portion of the substance that is actually
methamphetamine. See U.S.S.G. § 2D1.1, Note B to Drug Quantity Table.
Furthermore, the guidelines applicable to Mr. Reese’s sentencing make no
distinction between types of methamphetamine for purposes of sentencing. See
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United States v. Glover, 97 F.3d 1345, 1347 n.2 (10th Cir. 1996); United States v.
Rodriquez, 989 F.2d 583, 587 (2d Cir. 1993).
Mr. Reese next contends that his sentence was improperly enhanced due to
the loaded gun found in his car at the time of his arrest and that he was prejudiced
by his attorney’s failure to object. However, counsel did object to the
enhancement. Moreover, even had his objection been sustained, Mr. Reese’s 78-
month sentence would still have fallen within the sentence range applicable
absent the enhancement. Since Mr. Reese has failed to show either cause or
prejudice for his failure to raise his claims on direct appeal, the claims are
procedurally barred. See United States v. Kahn, 835 F.2d 749, 753-54 (10th Cir.
1987); Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v.
Frady, 456 U.S. 152, 168 (1982).
We conclude that Mr. Reese has failed to demonstrate the denial of a
constitutional right by showing that the issues raised on his appeal are debatable
among jurists, that a court could resolve the issues differently, or that the
questions deserve further proceedings. We DENY the certificate of appealability
and DISMISS the appeal. See Lenox v. Evans, 87 F.3d 431 (10th Cir. 1996),
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cert. denied, 117 S. Ct. 746 (1997); United States v. Simmonds, 111 F.3d 737,
746 (10th Cir. 1997).
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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