                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 18 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 96-7096
                                                    (D.C. No. 95-CV-538-S)
    TRAVIS D. LEONARD,                                    (E.D. Okla.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before ANDERSON, BARRETT, 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 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      This order and judgment is not binding precedent, except under the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.
      Defendant appeals from the district court’s denial of his motion, pursuant

to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. 1 Defendant was

convicted of conspiracy, in violation of 21 U.S.C. § 846, with two objects: to

possess with intent to distribute methamphetamine/amphetamine and/or attempt to

manufacture methamphetamine; and possession with intent to distribute

methamphetamine/amphetamine, in violation of 21 U.S.C. § 841(a)(1). This court

affirmed the conviction on appeal, but remanded for resentencing. After remand,

defendant again appealed, and this court affirmed.

      In this § 2255 motion, defendant raises several instances in which he

alleges that he received ineffective assistance of counsel. First, he argues that his

counsel was ineffective for failing to challenge the sentencing guideline that the

trial court applied in sentencing defendant. Next, defendant maintains that his

attorney was ineffective because of his failure to request a charge on a lesser

included offense. Finally, defendant argues ineffectiveness in his attorney’s

failure to argue that the record contains insufficient evidence of “any amount of



      1
             Defendant filed his original motion pursuant to § 2255 on November
9, 1995, prior to the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, April 24, 1996. In
Lindh v. Murphy, 117 S. Ct. 2059 (1997), the Supreme Court recently held that
the Act’s amendments to Chapter 153 of Title 28, including the amendments to 28
U.S.C. §§ 2253-2255, did not apply to noncapital cases pending on the effective
date. Therefore, defendant’s application for a certificate of appealability pursuant
to the amended § 2253 is dismissed.

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amphetamine which could be produced by the laboratory which was being

assembled pursuant to the conspiracy,” Appellant’s Br. at 21. We review

defendant’s claims of ineffective assistance of counsel in this § 2255 motion de

novo, see United States v. Cox, 83 F.3d 336, 340 (10th Cir. 1996), and we affirm.

      The sentencing court applied United States Sentencing Guideline

(U.S.S.G.) § 2D1.1 in sentencing defendant. Defendant argues that the court

should have applied U.S.S.G. § 2D1.11, and that his attorney’s failure to make

this argument rendered his assistance ineffective. 2 To prevail on a claim that his

attorney was ineffective for failing to raise these issues, defendant must show

both that his attorney’s performance fell below an objective standard of

reasonableness and that the deficient performance was prejudicial. See United

States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). Defendant cannot show either

deficient performance or prejudice because the trial court applied the correct

guideline in sentencing defendant. Section 2D1.11 applies when a defendant is

charged with violation of 21 U.S.C. § 841(d); the indictment delivered against

defendant did not charge him under that section. Defendant was indicted for



2
       The government argues that this, and defendant’s other arguments in this
§ 2255 appeal, are procedurally barred because defendant did not raise them on
direct appeal. The government fails, however, to acknowledge that defendant’s
allegations of error are couched in terms of ineffective assistance of counsel,
which this court has held is preferably raised in collateral proceedings. See
United States v. Galloway, 56 F.3d 1239, 1242-43 (10th Cir. 1995).

                                         -3-
violation of 21 U.S.C. § 841(a), and the guideline appropriate to that section is

§ 2D1.1, the very guideline applied by the trial court. See United States v. Myers,

993 F.2d 713, 716 (9th Cir. 1993). Defendant’s attorney was not deficient in

failing to argue application of U.S.S.G. § 2D1.11.

      Next, defendant complains that his counsel was ineffective for failing to

request a jury charge for what he terms “the lesser included offense” of

possession of listed chemicals with intent to manufacture a controlled substance,

in violation of 21 U.S.C. § 841(d). Defendant cites no authority for his theory

that § 841(d) is a lesser included offense of § 841(a). It is clear that § 841(d)

requires proof of an element that § 841(a) does not: possession of a listed

chemical. See Schmuck v. United States, 489 U.S. 705, 716 (1989) (holding that

where lesser offense requires an element not required for greater offense, no

lesser included offense instruction is required). Defendant was indicted for

conspiracy to violate § 841(a)(1), and the jury charge accurately reflects the law

in that regard. Defendant’s attorney was not constitutionally ineffective for

failing to object to the jury charge.

      Finally, defendant argues that his attorney’s failure to argue against the

sufficiency of the evidence for amphetamine production fell below an objective

standard of reasonableness. We do not reach this issue because the trial transcript

is not part of the record before us, and, without the trial record, we are unable to


                                          -4-
review the evidence to determine if defendant’s attorney was ineffective for

failing to raise the issue. In addition, we have nothing before us to indicate what

amount of amphetamine and calculations were used to resentence defendant.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    James E. Barrett
                                                    Senior Circuit Judge




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