                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              DEC 19 1997
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                           No. 97-6166
 v.
                                                     (D.C. No. CR-93-234-C)
                                                           (W.D. Okla.)
 STANLEY LAVELL LEVI,

          Defendant-Appellant.


                                ORDER AND JUDGMENT         *




Before BRORBY , EBEL , and KELLY , Circuit Judges.




      Defendant-Appellant Stanley Lavell Levi challenged his sentence by filing

a motion under 28 U.S.C. § 2255 claiming ineffective assistance of counsel. The

district court denied Levi's motion and we affirm.




      *
          After examining appellant’s brief and the 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(f) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                 BACKGROUND

      On November 17, 1994, Stanley L. Levi ("Levi") was indicted on nine

criminal counts, including one count of conspiracy to possess with intent to

distribute and conspiracy to distribute cocaine base, five counts of interstate

travel in aid of racketeering, and three counts of possession with intent to

distribute cocaine base. On May 9, 1994, Levi pled guilty under a plea agreement

to one count of possession with intent to distribute approximately 3 kilograms of

cocaine base in violation of 21 U.S.C. § 841(a)(1).

      Based on evidence gathered from other individuals involved in Levi's drug

trafficking activities, the presentence report concluded that the cocaine base in

Levi's possession at the time of his arrest constituted "crack" cocaine for purposes

of sentencing under section 2D1.1 of the United States Sentencing Guidelines (the

"Guidelines"). The presentence report also concluded that Levi was responsible

for distributing in excess of 15 kilograms of cocaine base and used the 15

kilogram figure in the calculation of Levi's base offense as relevant conduct under

U.S.S.G. § 3B1.3. The presentence report determined Levi's offense level under

the Guidelines to be 38, but recommended a two-level downward adjustment for

Acceptance of Responsibility credit. The presentence report calculated the

sentence range at 210 to 262 months imprisonment based on a final offense level

of 36 and a criminal history category of II.


                                        -2-
      Levi, through counsel, objected to each paragraph in the presentence report

which stated that the cocaine base involved in the offense was crack cocaine.

Despite Levi's objections, the district court concluded that adequate evidence

supported the factual findings made in the presentence report, and the district

court adopted those findings. The district court then sentenced Levi to 210

months imprisonment on January 24, 1995.

      We affirmed Levi's conviction and sentence on direct appeal in       United

States v. Levi , No. 95-6194, 1996 WL 194905 (10th Cir. Apr. 23, 1996)

(unpublished). On December 30, 1996, Levi filed a Motion to Set Aside or

Correct Sentence under 28 U.S.C. § 2255. The district court denied Levi's motion

in an order dated April 29, 1997. Levi now appeals.

                                   DISCUSSION

      The district court had jurisdiction to consider Levi's petition under 28

U.S.C. § 2255. Because Levi filed his motion in district court after April 24,

1996, the certificate of appealability requirements under the Antiterrorism and

Effective Death Penalty Act, 28 U.S.C.A. §§ 2254-66 (1996), apply to Levi's

appeal. The district court did not issue a certificate of appealability.

Nevertheless, we believe that Levi's appeal merits our review, and we hereby

issue a certificate of appealability for the issues discussed below.




                                         -3-
       Levi raises two arguments on appeal. First, he challenges his sentence as a

violation of his due process rights. Second, he claims ineffective assistance of

counsel both at trial and on the direct appeal of his sentence and conviction. We

address each argument in turn.

       Note (D) to section 2D1.1 of the Guidelines clarifies that "'Cocaine base,'

for the purposes of this guideline, means 'crack.' 'Crack' is the street name for a

form of cocaine base, usually prepared by processing cocaine hydrochloride and

sodium bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G.

§ 2D1.1, note (D) (1995). Levi contends that because he only pled guilty to

possession with intent to distribute cocaine base, when the court sentenced him

for possession with intent to distribute crack cocaine it violated his constitutional

rights to due process. However, Levi did not present this argument on direct

appeal. His failure to raise the issue on direct appeal bars him from presenting

the issue in his section 2255 motion unless "he can show cause excusing his

procedural default and actual prejudice resulting from the errors of which he

complains, or can show that a fundamental miscarriage of justice will occur if his

claim is not addressed."   United States v. Cook , 997 F.2d 1312, 1320 (10th Cir.

1993). As a result, we only need consider Levi's ineffective assistance of counsel

claim because that claim is the sole cause Levi advances for failing to include on

direct appeal the issues now presented in his 2255 motion.


                                         -4-
       Levi argues that his defense counsel should have contested the sentence on

the grounds that crack cocaine and cocaine base are not identical and that Levi

only pled guilty to possession of cocaine base, not of crack cocaine.       See, e.g. ,

United States v. Munoz-Realpe , 21 F.3d 375, 377-78 (11th Cir. 1994) (sentence

enhancements under section 2D1.1 of the Guidelines related to trafficking of

"cocaine base" only apply to cocaine that qualifies as "crack" cocaine). To

establish a claim of ineffective assistance of counsel, "a defendant must show (1)

that his attorney's performance was deficient and (2) that the deficient

performance prejudiced his defense."       Strickland v. Washington , 466 U.S. 668,

687 (1984). "Under the prejudice aspect of          Strickland we inquire whether 'there

is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.'"         Rogers v. United States , 91 F.3d

1388, 1392 (10th Cir. 1996) (quoting      United States v. Kissick , 69 F.3d 1048,

1055 (10th Cir. 1995)),    cert. denied , 117 S. Ct. 1000 (1997). We find that Levi's

claim fails to satisfy the prejudice prong of the      Strickland test. Thus, we do not

address the question of whether Levi's counsel acted improperly by failing to raise

the issue.

       The government only needed to prove by a preponderance of the evidence

that the cocaine base in Levi's possession was in fact crack cocaine for sentencing

purposes under the Guidelines.      United States v. Adams , 125 F.3d 586, 592 (7th


                                             -5-
Cir. 1997). We review "the sentencing court's factual findings under a clearly

erroneous standard."   Id. at 578. The presentence report included extensive

evidence that Levi possessed crack cocaine. Levi offers no evidence to support

his contention that he did not possess crack cocaine. Thus, this record establishes

that Levi possessed crack cocaine, and Levi cannot show how he was prejudiced

by counsel's failure to raise the issue on direct appeal.

      Levi also objects to the type of evidence in the presentence report

describing the seized cocaine base as crack cocaine. Specifically, he claims that

the presentence report includes inadmissible hearsay evidence that should not

have been considered by the district court when it adopted the presentence report's

findings that Levi possessed crack cocaine. Nevertheless, the district court "may

consider any reliable information, including hearsay," to evaluate a defendant's

criminal conduct for sentencing purposes.     United States v. Mays , 902 F.2d 1501,

1503 (10th Cir. 1990). Thus, any objection by Levi's counsel on this point also

would not have changed the final disposition of Levi's sentence.

      For these reasons, we AFFIRM the order of the district court.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT

                                        David M. Ebel
                                        Circuit Judge



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