                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              JAN 19 1999
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                           No. 98-3228
 v.
                                                      (D.C. No. 98-CV-3076)
                                                        (District of Kansas)
 BOBBERT S. COOK,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before ANDERSON, McKAY and LUCERO, Circuit Judges.




      Appellant Bobbert S. Cook appeals pro se the district court’s denial of his

28 U.S.C. §2255 motion to modify, vacate or set aside his sentence, and the

district court’s sua sponte denial of his certificate of appealability.




      *
         The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
      Mr. Cook was a passenger in a vehicle driven by Brian Walker when it was

stopped by Kansas State Trooper Richard Jimerson. A subsequent search of the

vehicle by Trooper Jimerson uncovered 38 kilos of cocaine. Walker entered a

conditional guilty plea to one count of possession of cocaine with intent to

distribute in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 121 months

imprisonment. Cook decided to go to trial. While in pretrial detention, Cook

arranged with the assistance of his cellmate James Stark, a government informant,

to hire one “Daniel Ortega,” an undercover government agent, to kill Trooper

Jimerson. A jury found Cook guilty of possession of cocaine with intent to

distribute in violation of 21 U.S.C. § 841(a)(1) (Count I), conspiracy to retaliate

against a witness by killing in violation of 18 U.S.C. § 371 (Count II), attempt to

retaliate against a witness by killing him in violation of 18 U.S.C. §

1512(a)(1)(A) (Count III), and interstate transportation in aid of racketeering in

violation of 18 U.S.C. § 1952(a)(2) (Count IV). He was sentenced to a term of

240 months imprisonment.

      A third co-defendant, Carolyn Saffold, was originally charged, convicted,

and sentenced on three counts involving the plan to kill Trooper Jimerson. On an

earlier appeal, we found the evidence supporting Saffold’s conviction to be

insufficient, and reversed her conviction and sentence. In the same decision, we

reversed Cook’s conspiracy count (Count II) because Saffold was the sole


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conspirator named in Cook’s conviction. We also affirmed Cook’s conviction and

sentence on Counts I, III and IV. See United States v. Walker, No. 96-3049, 1996

WL 731631 (10th Cir. Dec. 20, 1996). On remand, the district court determined

that under the applicable sentencing guidelines, the reversal of Cook’s conspiracy

count did not affect the sentences previously imposed. United States v. Cook, No.

95-10012-01, slip op. at 4 n.6 (D. Kan. July 20, 1998).

      Because Cook may not proceed on appeal unless he secures a certificate of

appealability, see 28 U.S.C. § 2253(c)(1), he now presents an application for a

certificate of appealability to this court. We issue a certificate of appealability

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, Cook need

not demonstrate that he would prevail on the merits. Instead, he must only show

that either the issues raised are debatable among jurists, a court could resolve the

issues differently, or the questions deserve further proceedings. Lennox v. Evans,

87 F.3d 431, 434 (10th Cir. 1996) (holding that the standard for issuing a

certificate of appealability is the same as the standard for issuing a certificate of

probable cause established in Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)

(citations omitted)), cert. denied, — U.S. —, 117 S. Ct. (1997), overruled in part

on other grounds by Lindh v. Murphy, — U.S. —, 117 S. Ct. 2059 (1997).




                                          -3-
      Cook presents eleven grounds for relief. 1 We have reviewed the record on

appeal and conclude that Cook has failed to make a substantial showing of the

denial of a constitutional right.

      We begin with Cook’s claims that concern his conviction. Challenging the

sufficiency of the evidence used to convict him, appellant makes two identical

claims that he no longer should be liable for violating interstate transportation in

aid of racketeering, 18 U.S.C. § 1952(a)(2), because his conspiracy conviction

was overturned (grounds one and three). These claims are meritless. There is

ample evidence on the record to show that Cook attempted to use Federal Express

to send money with intent to murder Trooper Jimerson. In addition, appellant’s

claims that he was a victim of government entrapment in the attempt to arrange

Trooper Jimerson’s death and in the use of Federal Express in furtherance of that

attempt (ground four) were raised at trial and were not raised on appeal.

      Appellant also alleges a number of errors in the sentencing process and in

the sentence that he received. His claim that the sentencing court did not realize

that it had the authority to depart downward from the Sentencing Guidelines

(ground eight) is meritless, and was previously considered by this court. See

Walker, 1996 WL 731631, at *7-8. As noted there, the district court specifically



      1
        Although appellant’s brief contains twelve claims, he has withdrawn “Ground
Five” from appellate review.

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declined to depart when sentencing Cook, and we therefore have no jurisdiction to

review the district court’s discretionary refusal to depart downward. See id. at *8

(citing United States v. Williamson, 53 F.3d 1500, 1529 (10th Cir. 1995)).

          In addition, appellant claims that he was not given an opportunity to

address the sentencing court on the issue of mitigation (ground nine). Even if we

reject the district court’s finding that appellant’s lengthy statement prior to

sentencing was insufficient denial of allocution in sentencing is not a

“fundamental defect” that would result in the complete miscarriage of justice

necessary for a showing under 28 U.S.C. § 2255. Hill v. United States, 368 U.S.

424, 428 (1962).

          Appellant alleges two additional defects in the sentencing process. He

claims that he was not given the opportunity to review his presentence report

before sentencing (ground six), and he claims that the sentencing court failed to

provide him with an adequate explanation for the duration of his sentence (ground

ten). After our review of the record, we conclude that Cook has failed to make a

substantial showing of the denial of a constitutional right for substantially the

same reasons stated by the district court in its July 30, 1998, order denying Cook

relief.

          Challenging the sentence itself, appellant claims that he was the victim of

“double counting” because he received two sentence enhancements for his attempt


                                            -5-
to retaliate against a police officer (ground seven). The sentencing court,

following the Sentencing Guidelines, assigned Cook enhancements for Trooper

Jimerson’s status as an “official victim,” U.S.S.G. § 3A1.2, and for obstructing

justice, U.S.S.G. § 3C1.1. Impermissible double counting “occurs when the same

conduct on the part of the defendant is used to support separate increases under

separate enhancement provisions which necessarily overlap, are indistinct, and

serve identical purposes.” United States v. Blake, 59 F.3d 138, 140 (10th Cir.

1995) (citing United States v. Flinn, 18 F.3d 826, 829 (10th Cir. 1994)). Each of

the enhancements applied to Cook’s sentence appear separately as “adjustments”

in Chapter Three of the Sentencing Guidelines, but are distinct, have no overlap,

and serve different purposes. As the Guidelines note, “[a]bsent an instruction to

the contrary, the adjustments from different guideline sections are applied

cumulatively.” U.S.S.G. § 1B1.1, comment. (n.4). No such instructions appear

with these enhancements in the Guidelines, and their cumulative application to

Cook’s sentence therefore does not constitute “double counting.”

       Cook also argues that he should be granted a certificate of appealability in

light of this circuit’s holding in United States v. Singleton, 144 F.3d 1343 (10th

Cir. 1998) (ground twelve). Because that decision was vacated pending an en

banc rehearing, however, we cannot and will not consider this claim, nor will we

delay our decision until the circuit renders a final judgment.


                                         -6-
      Finally, as to Cook’s two other claims, that he was forced to proceed to

trial on two valid indictments after jeopardy had attached to both of them (ground

two), and that he received ineffective assistance of counsel in violation of his

constitutional rights (ground eleven), we also concur with the district court’s

justification for rejecting these claims.

      Cook has failed to make a substantial showing of the denial of a

constitutional right. His application for a certificate of appealability is therefore

DISMISSED for failure to state a claim.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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