                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 20, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 14-4111
 v.                                                      (D. of Utah)
 ANTHONY TERRELL RAY                         (D.C. Nos. 2:12-CV-01197-TC and
 FERGUSON,                                         2:09-CR-00888-TC-1)

              Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **



      Anthony Ferguson, filing pro se, seeks a certificate of appealability (COA)

to appeal the district court’s denial of his 28 U.S.C. § 2255 petition seeking to

vacate, set aside, or correct his sentence. 1 He contends that the sentencing court

erred in its application of the United States Sentencing Guidelines and that his

      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        We construe pro se filings liberally. Garza v. Davis, 596 F.3d 1198,
1201 n.2 (10th Cir. 2010).
counsel was ineffective. Exercising jurisdiction under 28 U.S.C. § 1291, we deny

a COA and dismiss the appeal.

                                   I. Background

      The Drug Enforcement Agency began investigating Ferguson when it

learned he was involved in a scheme to traffic methylenedioxymethamphetamine

(MDMA, or “ecstasy” ) between California and Utah. Through seizures and

undercover purchases, the DEA recovered pills suspected to contain MDMA and a

different controlled substance called N-benzylpiperazine (BZP). DEA lab reports

confirmed that the active ingredient in many of these pills was BZP and not

MDMA. Ferguson was charged in the District of Utah with (1) conspiracy to

distribute MDMA in violation of 21 U.S.C. § 846, (2) distributing BZP in

violation of 21 U.S.C. § 841(a)(1), and (3) distributing MDMA in violation of 21

U.S.C. § 841(a)(1). Ferguson pleaded guilty to the first charge in exchange for

dismissal of the other two charges and a recommendation that he be sentenced at

the lower end of the Guidelines.

      A pre-sentencing report noted that 955 of the pills contained BZP. The

DEA lab reports indicated that the number of pills containing BZP (and not

MDMA) was far greater than 955, but Ferguson’s counsel did not supply the court

with these reports. The district court concluded that Ferguson conspired to

distribute between 110,000 and 120,000 pills of MDMA and BZP. Although there

was no sentencing guideline for BZP, Section 1B1.2 of the Guidelines provided

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that courts should “use the most analogous guideline.” The court found that

MDMA was most analogous to BZP because distributors, including Ferguson

himself, represented BZP as MDMA to their customers. Consequently, the

MDMA Guideline applied to the entire quantity of pills. Based on that Guideline

and Ferguson’s career offender status, the advisory range exceeded the statutory

maximum of 240 months in prison. The court sentenced him to 180 months.

      Ferguson appealed the sentence to this court, but we affirmed. United

States v. Ferguson, 447 F. App’x 898 (10th Cir. 2012). He then filed a § 2255

collateral challenge in the District of Utah, arguing only that his counsel was

ineffective in violation of the Sixth Amendment. The court denied his petition

and also denied a COA.

                                  II. Analysis

      To attain a COA, Ferguson must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). We must grant the COA if

reasonable jurists could find the district court’s decision “debatable or wrong.”

Laurson v. Leyba, 507 F.3d 1230, 1231–32 (10th Cir. 2007) (citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

      In his brief, Ferguson makes two arguments: (1) reasonable jurists could

debate whether it was proper for the sentencing court to apply MDMA Guidelines

to BZP, and (2) reasonable jurists could debate whether his counsel was effective.



                                        -3-
       A. Sentencing Court’s Application of MDMA Guidelines

       Ferguson contends that the district court should not have applied the

MDMA Guidelines to BZP because MDMA is not the most analogous drug. He

cites cases in which other circuits remanded for resentencing after finding

insufficient evidence to prove that BZP-containing pills were analogous to

MDMA. See United States v. Beckley, 515 F. App’x 373 (6th Cir. 2013); United

States v. Figueroa, 647 F.3d 466 (2d Cir. 2011). But Ferguson did not include

this argument in his original habeas petition to the district court or in his direct

appeal. Construing the petition liberally, we understand that he only argued his

counsel was ineffective. The argument will not be heard for the first time on

appeal. See, e.g., United States v. Flood, 713 F.3d 1281, 1291 (10th Cir. 2013)

(citing Parker v. Scott, 394 F.3d 1302, 1319–20 (10th Cir. 2005)) (declining to

expand COA to include claim that was not adequately raised below), cert. denied,

134 S. Ct. 341 (2013); Parker, 394 F.3d at 1319–20 (“We do not review these

claims because Parker failed to assert them in his district court petition for habeas

relief.”).

       B. Ineffective Assistance of Counsel

       Ferguson next contends that his Sixth Amendment rights were violated

because his counsel was ineffective. To prevail on this claim, he must show his

counsel’s performance was deficient and that the deficiency prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). His counsel must

                                          -4-
have “committed serious errors in light of ‘prevailing professional norms’ such

that his legal representation fell below an objective standard of reasonableness,”

and there must be “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Grant v.

Trammell, 727 F.3d 1006, 1017 (10th Cir. 2013) (internal quotation marks

omitted) (quoting Wackerly v. Workman, 580 F.3d 1171, 1176 (10th Cir. 2009)),

cert. denied, 134 S. Ct. 2731 (2014). But there is “a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689.

      While it is somewhat unclear from his pleadings, we understand Ferguson

to challenge counsel’s failure to submit the lab reports at sentencing and

counsel’s recommendation that Ferguson plead guilty to conspiracy to distribute

MDMA when the lab reports stated that the pills contained BZP.

             1. Failure to Submit Lab Reports at Sentencing

      We reject the claim that counsel’s failure to submit the lab reports at

sentencing constituted ineffective assistance, and in doing so we need not

consider whether counsel’s performance was deficient. “If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that

course should be followed.” Strickland, 466 U.S. at 697. There was no prejudice

here because the district court already knew that at least some of the pills

contained BZP. The government admitted that the drugs recovered from Ferguson

                                         -5-
included BZP, and the court made a factual finding that the pills included BZP.

The court nonetheless concluded that the MDMA Guidelines should apply to all

of the pills because it found that MDMA was the most analogous drug to BZP.

      Because the lab reports merely would have shown that there was more BZP

than originally suspected, there is no reasonable probability that the attorney’s

failure to submit these reports could have influenced the district court’s decision.

As long as the district court treated BZP as equivalent to MDMA, the sentence

would have been the same.

             2. Advising Ferguson to Plead Guilty to Conspiracy Charge

      Ferguson contends that because the lab reports revealed “that the substance

in question was actually BZP,” counsel performed ineffectively by advising him

to plead guilty to conspiring to distribute MDMA. Aplt. Br. at 9. We reject this

contention because Ferguson does not support it with facts, reasoning, or law.

The record and his brief do not include any specific evidence as to what counsel

told him about pleading guilty and why this advice was unreasonable,

unprofessional, or even bad. There are certainly no obvious reasons for thinking

that counsel advised him deficiently. Ferguson faced three charges and pleaded

guilty to one of them in exchange for avoiding the other two, and as a result he

ended up with a sentence well below the statutory maximum even though his

advisory range exceeded the maximum. One of the charges that was dropped was

for distributing BZP. Because there was a chance that BZP would be treated as

                                         -6-
equivalent to MDMA, counsel likely knew that Ferguson would have faced the

same sentence for distributing BZP that he would have faced for conspiring to

distribute MDMA. 2 Pleading guilty to an equally serious charge in exchange for

avoiding the other charges and receiving a lighter sentence does not evidence

deficient or prejudicial advice.

      Thus, without any explication from Ferguson as to how this advice was

deficient, we have no basis for holding that reasonable jurists could find the issue

debatable. Although we construe pro se filings liberally, “the court cannot take

on the responsibility of serving as the litigant’s attorney in constructing

arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005). This is especially true where the allegations

are “merely conclusory in nature and without supporting factual averments.”

United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

      Furthermore, even if the lab reports revealed that none of the pills

contained MDMA—a fact without clear support in the record––the reports may

not have been relevant to the crime to which Ferguson pleaded guilty.

Conspiracy to distribute MDMA does not require actual possession of MDMA.

Rather, conspiracy to distribute controlled substances under 21 U.S.C. § 846


      2
        See 21 U.S.C. § 846 (“Any person who attempts or conspires to commit
any offense defined in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the object of the
attempt or conspiracy.”).

                                         -7-
requires “(1) an agreement with another person to violate the law, (2) knowledge

of the essential objectives of the conspiracy, (3) knowing and voluntary

involvement, and (4) interdependence among the alleged conspirators.” United

States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997). In other words, if

Ferguson thought the pills contained MDMA instead of BZP (and it appears that

he did, based on his assertion in his original § 2255 petition that he did not know

the pills contained BZP), he could have been convicted of conspiracy to distribute

MDMA even if there had been indisputable proof that the pills contained only

BZP. Thus, there is no obvious reason to doubt counsel’s competence in failing

to share the lab reports and advising Ferguson to plead guilty to the conspiracy

charge.

      Although we could end our inquiry here because there is no evidence of

deficient performance by counsel, we also note that Ferguson does not provide

reason to believe that he was prejudiced. To establish the prejudice element of a

Strickland claim, a petitioner who pleaded guilty must show that “there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

59 (1985). Ferguson does not argue that he would have gone to trial if he had

seen the lab reports, and indeed he did not argue this in his § 2255 motion either.

Rather, if we liberally assume that he means to repeat the same arguments he

made in his § 2255 motion, he contends that his attorney should have advised him

                                         -8-
to plead guilty to the BZP offense instead of the MDMA offense. He claims he

was prejudiced because he would have received a different sentence for the BZP

offense: “the district court conceded that the amount of MDMA compared to BZP

would affect Mr. Ferguson’s sentence and [BZP] carries a lesser penalty.” Aplt.

Br. at 9.

       But the district court said nothing of the sort. It stated that it had held an

evidentiary hearing to determine the amount of MDMA because it “would affect

the length of Mr. Ferguson’s sentence,” but it was not distinguishing MDMA

from BZP. R., Vol. I at 167. On the contrary, it treated BZP as equivalent to

MDMA. For the same reasons discussed above, the sentence would have been the

same had he pleaded guilty to a BZP-related offense. To assert that he would

have pleaded guilty to an equally serious count is not to assert that he would have

insisted on going to trial or that the outcome would have been different, as

required under Hill and Strickland. See United States v. Landsaw, 206 F. App’x

773, 777 (10th Cir. 2006) (finding no prejudice where petitioner argued that he

would have pleaded guilty to a different count and received a sentencing

reduction if not for ineffective assistance, but could not establish that he actually

would have received the reduction); see also Short v. United States, 471 F.3d 686,

696–97 (6th Cir. 2006) (finding no prejudice under Hill where petitioner, rather

than claiming he would have gone to trial, asserted “that he wound up with a less




                                          -9-
favorable plea or sentence than he otherwise would have accepted with the advice

of competent counsel”).

      Accordingly, reasonable jurists could not debate the conclusion that

Ferguson was not prejudiced by a deficient performance by counsel.

                               III. Conclusion

      For the foregoing reasons we DENY the COA and DISMISS this matter.

We also DENY the motion to proceed in forma pauperis.

                                              ENTERED FOR THE COURT,

                                              Timothy M. Tymkovich
                                              Circuit Judge




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