                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3751
                                    ___________

Babatunde Nathaniel Beeks,               *
                                         *
                    Appellant,           * Appeal from the United States
                                         * District Court for the Southern
      v.                                 * District of Iowa.
                                         *
United States of America,                *      [UNPUBLISHED]
                                         *
                    Appellee.            *
                                    ___________

                              Submitted: June 18, 2004
                                 Filed: June 25, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, FAGG, and RILEY, Circuit Judges.
                         ___________

PER CURIAM.

       A jury convicted Babatunde Nathaniel Beeks of conspiracy to distribute crack
cocaine. We granted Beeks a new trial because of inappropriate cross-examination
of a witness. United States v. Beeks, 224 F.3d 741 (8th Cir. 2000). On remand,
Beeks pleaded guilty. At the second sentencing hearing, Beeks disputed whether he
was responsible for powder or crack cocaine. Beeks testified his only involvement
in the conspiracy was his delivery of nine ounces of powder cocaine. The district
court found the type of cocaine involved was crack as found in the presentence report.
Beeks appealed his sentence, but did not challenge the court’s finding that the cocaine
involved was crack. United States v. Beeks, 266 F.3d 880 (8th Cir. 2001) (per
curiam). We affirmed Beeks’s sentence, holding his offense involved 2722 grams of
crack cocaine. Id. at 884.

       Beeks then filed this 28 U.S.C. § 2255 motion asserting his appellate attorney
was ineffective for failing to argue Beeks’s involvement in the conspiracy was limited
to powder cocaine. The district court* denied the motion, concluding Beeks suffered
no prejudice from his attorney’s performance because the issue was raised at the
sentencing hearing and Beeks was allowed to testify about the type of drugs involved
in the conspiracy. The court noted that contrary to Beeks’s testimony that his
involvement in the conspiracy was limited to nine ounces of powder cocaine, the trial
testimony showed Beeks was involved in a much larger conspiracy involving crack
cocaine. See Beeks, 224 F.3d at 743 (summarizing testimony). Further, the court
noted the indictment to which Beeks pleaded guilty charged a conspiracy to distribute
cocaine base, Beeks admitted under oath that he understood the nature of the charge
against him, and the judgment of conviction identified the offense as conspiracy to
distribute cocaine base. The district court held that given the record and the trial
testimony, there was no reasonable probability that the results of the sentencing or
appeal would have been different if Beeks’s appellate attorney had argued Beeks’s
involvement in the conspiracy was limited to powder cocaine. Because Beeks
suffered no prejudice as a result of his appellate attorney’s failure to make the powder
cocaine argument, the district court denied Beeks’s § 2255 motion.

       To prevail on his ineffective assistance of counsel claim, Beeks had to show
that his attorney’s performance was defective and that the defective performance
prejudiced his defense. Lindsey v. United States, 310 F.3d 606, 607 (8th Cir. 2002).
To establish prejudice, Beeks had to show the result of the proceeding would have
been different but for his attorney’s errors. Id. Beeks contends that if his attorney


      *
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

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had asserted the conspiracy only involved powder cocaine, Beeks would have been
sentenced only for powder cocaine and thus would have received a lesser sentence.
We agree with the district court that even if Beeks’s attorney had raised the issue,
there was not a reasonable probability that he would have prevailed.

       Beeks contends the district court’s conclusion is wrong because the court
simply relied on the presentence report to decide the powder versus crack issue and
because the court erroneously believed it was bound by its own earlier finding on the
proper drug type. We disagree with Beeks about the grounds for the district court’s
decision. As our earlier explanation makes clear, the district court relied on trial
testimony in concluding Beeks’s involvement in the conspiracy included crack
cocaine. See Beeks, 224 F.3d at 743 (recounting witnesses’ testimony that Beeks sold
them crack cocaine). The sentencing court could properly look to the record of the
case as a whole including testimony from the trial over which it had presided. United
States v. Collins, 340 F.3d 672, 678 (8th Cir. 2003).

      Because Beeks was not prejudiced by his attorney’s failure to raise the crack
versus powder cocaine issue, we affirm the district court.
                     ______________________________




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