United States v. Barrett ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-6792
JEANETTE BARRETT, a/k/a Jeanetty
Barrett,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-6809
JESSE LEE BARRETT,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Irene M. Keeley, District Judge.
(CR-95-11, CA-97-61-3, CA-97-9-3)
Submitted: January 20, 1999
Decided: June 22, 1999
Before WILLIAMS and TRAXLER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Martin Patrick Sheehan, SHEEHAN & NUGENT, Wheeling, West
Virginia; Rocco E. Mazzei, Clarksburg, West Virginia, for Appel-
lants. Zelda Elizabeth Wesley, OFFICE OF THE UNITED STATES
ATTORNEY, Clarksburg, West Virginia; Thomas Oliver Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants seek to appeal the district court's order denying their
motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).
Appellants were convicted of distributing cocaine in violation of 21
U.S.C. § 841(a)(1) (1994). Neither Appellant received a mandatory
minimum sentence. Appellants assert that they received ineffective
assistance of counsel at sentencing because counsel failed to note U.S.
Sentencing Guidelines Manual § 2D1.1(b)(4) (1995) ("USSG"),
which gives a two-level downward departure to defendants meeting
the criteria of USSG § 5C1.2 (Limitation on Applicability of Statu-
tory Minimum Sentences in Certain Cases). The district court dis-
missed Appellants' motion on the ground that § 2D1.1(b)(4) did not
apply to defendants without mandatory minimum sentences. Appel-
lants asserted that § 2D1.1(b)(4) was not so limited, citing United
States v. Osei, 107 F.3d 101, 104 (2d Cir. 1997), and United States
v. Mertilus, 111 F.3d 870, 874 (11th Cir. 1997).
To establish counsel was ineffective, Appellants must show that:
(1) their counsels' performance fell below an objective standard of
reasonableness; and (2) counsels' actions were prejudicial. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). At the time
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the Appellants were sentenced, the potential applicability of
§ 2D1.1(b)(4) to defendants who had been convicted of offenses with-
out mandatory minimum sentences was neither obvious from a plain
reading of the sentencing guidelines nor the subject of any reported
judicial decision. Appellants thus fail to establish that their counsels'
failure to argue for a downward departure on the basis of
§ 2D1.1(b)(4) fell below an objective standard of reasonableness.
Accordingly, we deny certificates of appealability and dismiss the
appeals. United States v. Barrett, Nos. CR-95-11; CA-97-61-3; CA-
97-9-3 (N.D.W. Va. May 20 & June 12, 1998). We deny Jeanette Bar-
rett's motion for appointment of counsel. By separate order we have
granted her motion for the preparation of a transcript at government
expense. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
DISMISSED
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