                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 13-3640
                       ___________________________

                                 Gary Lee Brooks

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

                            United States of America

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                  for the Northern District of Iowa - Sioux City
                                 ____________

                         Submitted: September 12, 2014
                           Filed: November 24, 2014
                                ____________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

GRUENDER, Circuit Judge.

       In this proceeding under 28 U.S.C. § 2255, Gary Brooks claims ineffective
assistance of trial counsel. The district court1 denied Brooks’s petition, and we
affirm.

      1
      The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.
       In April 2008, Brooks bought methamphetamine from Laura Gamboa. Officers
searched Brooks and his vehicle and found scales, baggies, and 33.97 grams of actual
methamphetamine. In a motel room rented by Gamboa and another woman, officers
later found 62.28 grams of actual methamphetamine.

       Brooks was indicted on two counts: (1) conspiracy to distribute and possess
with intent to distribute fifty or more grams of actual methamphetamine within 1,000
feet of a playground and (2) conspiracy to distribute and possess with intent to
distribute five or more grams of actual methamphetamine within 1,000 feet of a
playground. See 21 U.S.C. §§ 841, 846, 860(a). The Government contended that
Brooks had conspired with Gamboa to distribute methamphetamine and thus that
Brooks was responsible for both the 33.97 grams found in his vehicle and the 62.28
grams from Gamboa’s motel room.

      On the advice of counsel, Brooks entered an Alford plea on both counts. See
North Carolina v. Alford, 400 U.S. 25, 37 (1970). Because Brooks’s plea on the first
count involved more than fifty grams of methamphetamine, Brooks faced and
ultimately received a mandatory minimum sentence of 120 months’ imprisonment.
See 21 U.S.C. § 841(b)(1)(A). We affirmed his sentence. United States v. Brooks,
415 F. App’x 731 (8th Cir. 2011) (per curiam).

       Brooks now brings this habeas challenge, alleging ineffective assistance of
counsel. He claims that Gamboa sold him the 33.97 grams of methamphetamine for
personal use and that he did not conspire to distribute the 62.28 grams from the motel.
Brooks argues that had he gone to trial, a jury was unlikely to have convicted him on
the fifty-gram count. Thus, Brooks asserts, trial counsel was constitutionally
ineffective in recommending an Alford plea on that count. In this proceeding,
however, counsel explained his belief that a jury likely would have convicted Brooks
on the fifty-gram count. Counsel decided Brooks should avoid that risk and enter an
Alford plea so that Brooks might decrease his sentence by cooperating with the

                                         -2-
Government, see 18 U.S.C. § 3553(e), accepting responsibility, see USSG § 3E1.1,
and avoiding a potential obstruction-of-justice sentencing enhancement, see USSG
§ 3C1.1.

       “On appeal from a denial of a 28 U.S.C. § 2255 motion, we review the district
court’s legal conclusions de novo and its factual findings for clear error.” Morelos
v. United States, 709 F.3d 1246, 1249 (8th Cir. 2013). To succeed, Brooks “must
show that his counsel’s performance was deficient and that [he] suffered prejudice as
a result.” See Anderson v. United States, 762 F.3d 787, 792 (8th Cir. 2014) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). We begin with “a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. “[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690.

       Under these circumstances, we cannot say that counsel’s decision to
recommend that Brooks enter an Alford plea on the fifty-gram conspiracy count was
anything but a permissible strategic choice, because counsel reasonably believed that
a jury would have found Brooks guilty on that count. If Brooks had conspired to
distribute methamphetamine, Brooks would have been “accountable for drugs
possessed by his co-conspirators if they [had] acted in furtherance of the conspiracy,
and their activities [had been] known or reasonably foreseeable to [Brooks].” See
United States v. Spotted Elk, 548 F.3d 641, 674 n.12 (8th Cir. 2008). A jury could
have found such a conspiracy because Brooks bought a distributable quantity of
methamphetamine from Gamboa. Despite Brooks’s claim that the 33.97 grams in his
vehicle was for personal use, this amount is consistent with distribution. See, e.g.,
United States v. Fetters, 698 F.3d 653, 657-58 (8th Cir. 2012) (referencing a narcotics
expert’s testimony that 11.73 grams of methamphetamine at 73 percent purity is a
distribution quantity). The scales and baggies in Brooks’s vehicle further suggest an
intent to distribute. See, e.g., United States v. Vore, 743 F.3d 1175, 1181 (8th Cir.

                                         -3-
2014). Thus, counsel reasonably concluded that a jury would have found that Brooks
conspired with Gamboa to distribute methamphetamine and that Gamboa’s
possession of more methamphetamine was reasonably foreseeable to Brooks. See
United States v. Moya, 690 F.3d 944, 949 (8th Cir. 2012) (“[A] large quantity of
drugs, rather than amounts consistent with personal use, supports an inference that
the defendant knew he was part of a larger venture that extended beyond his
participation.” (internal quotation marks omitted)). Accordingly, counsel’s
recommendation that Brooks enter an Alford plea was a permissible strategic choice.

      Although Brooks’s presentence investigation report later attributed only the
33.97 grams of methamphetamine to Brooks, and though Brooks eventually did not
receive a substantial-assistance departure, these facts are of no moment. “When
assessing attorney performance, courts should avoid the distorting effects of hindsight
and try to evaluate counsel’s conduct by looking at the circumstances as they must
have appeared to counsel at the time.” Rodela-Aguilar v. United States,
596 F.3d 457, 461 (8th Cir. 2010) (quoting United States v. Staples, 410 F.3d 484,
488 (8th Cir. 2005)).

        Because we find no constitutional deficiency in the performance of Brooks’s
trial counsel, we do not reach the question of prejudice. The judgment of the district
court is affirmed.

                       ______________________________




                                         -4-
