                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                                No. 98-50014


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                     v.

                            DONALD RAY GONZALES,

                                                     Defendant-Appellant,


              Appeal from the United States District Court
                    for the Western District of Texas

                               (SA-97-CA-240)


                                July 9, 1999

Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

              On January 27, 1993, a jury found Donald Ray Gonzales

guilty   of    possession   with   intent   to   distribute   a   controlled

substance.     See 21 U.S.C. § 841(a)(1).      His conviction and 80 month

sentence were affirmed by this court.              See United States v.

Gonzales, No. 93-8266, slip op. (5th Cir. Nov. 1, 1993).             He now

challenges his conviction under the guise of a petition for habeas

relief pursuant to 28 U.S.C. § 2255.        The district court, adopting

the report and recommendation of a magistrate judge, dismissed



     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Gonzales’s petition.        Gonzales timely appealed and requested a

certificate of appealability (“COA”).               We granted the COA to

address   only   one   of   Gonzales’s   numerous     arguments:        whether

Gonzales’s attorney rendered ineffective assistance by failing to

seek a jury instruction regarding the lesser-included offense of

mere possession of a controlled substance under 21 U.S.C. § 844(a).

Finding Gonzales’s allegations against an attorney of the Federal

Public Defender’s Office lack merit, we affirm.

           A claim of ineffective assistance of counsel is governed

by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

To prevail on an ineffective assistance claim, a petitioner must

show both deficient performance by counsel and prejudice to the

defense as a result of the deficient performance.              See id. at 687,

104 S. Ct. at 2064.     Counsel’s performance is deficient if it falls

below an objective standard of reasonableness.          See id. at 688, 104

S. Ct. at 2064.        Our review of counsel’s performance is highly

deferential, with a strong presumption that the performance was

reasonable.      See id. at 689, 104 S. Ct. at 2065.                   Deficient

performance   is   prejudicial    only   upon   a    showing    that    but   for

counsel’s errors, there is a reasonable probability that the

ultimate result would have been different and that confidence in

the reliability of the verdict is undermined. See United States v.

Faubion, 19 F.3d 226, 228 (5th Cir. 1994).            The effectiveness of

counsel is a mixed question of law and fact reviewed de novo by

this court. See Moody v. Johnson, 139 F.3d 477, 483 (5th Cir.


                                     2
1998).

           In United States v. Hunt, 129 F.3d 739 (5th Cir. 1997),

and United States v. Lucien, 61 F.3d 366 (5th Cir. 1995), we held

that simple possession of a controlled substance, 21 U.S.C. §

844(a), constituted a lesser-included offense of possession of a

controlled      substance    with   intent       to    distribute,     21    U.S.C.   §

841(a)(1).      See Hunt, 129 F.3d at 744 (“The government asked us to

remand for entry of judgment and for sentencing on the lesser

included offense of simple possession if we found the evidence

insufficient to support the element of intent to distribute.”

(emphasis added)); Lucien, 61 F.3d at 373-77.                 In fact, in the case

relied upon by the government, this court also held that simple

possession of a controlled substance under § 844(a) was a lesser-

included   offense      of   possession        with    intent     to   distribute     a

controlled substance under § 841(a)(1) -- even when the controlled

substance was cocaine base.         See United States v. Deisch, 20 F.3d

139, 152 (5th Cir. 1994). Indeed, the government’s argument to the

contrary   is    nigh   frivolous     in       light   of   our   well-established

precedent.

           That     Gonzales    may    have       been      entitled    to    a   jury

instruction on the lesser-included offense of simple possession

does not end our inquiry, however.               We granted a COA in this case

to resolve whether Gonzales’s counsel was ineffective in failing to

request an instruction on the lesser-included offense of simple

possession.      In order to prevail on this claim, Gonzales must show


                                           3
that his attorney’s performance was both objectively unreasonable

and prejudicial.    See Strickland, 466 U.S. at 687-88, 104 S. Ct. at

2064.

            Assuming, arguendo, that the performance of Gonzales’s

attorney was deficient,2 we reject Gonzales argument that he was

prejudiced by the alleged deficiency.               In order to support the

prejudice prong of his ineffective assistance claim, Gonzales must

establish that, but for his counsel’s errors, the outcome of his

trial would have been different.              See Faubion, 19 F.3d at 228.

Even if his counsel provided ineffective assistance by failing to

request a lesser-included offense instruction, Gonzales fails to

show that he was prejudiced by this failure.

            Gonzales has not shown a reasonable probability that the

ultimate outcome     of   his   trial       was   affected   by    his   counsel’s

conduct. See id.     This court has previously held that the evidence

presented    at   Gonzales’s    trial       supported    his      conviction   for

possession with intent to distribute a controlled substance.                   See

        2
       We note that a decision not to seek an instruction on a
lesser-included offense may be the result of a reasonable trial
strategy. See, e.g., Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir.
1997) (lesser-included offense inconsistent with alibi); Cordova v.
Scully, No. 87 Civ. 0839, 1991 WL 733, at *3 (S.D.N.Y. Jan. 4,
1991) (“[C]ounsel, perhaps assured of an acquittal on the [greater
offense], reasonably would not want to chance conviction on a
lesser charge.”).    In his closing argument Gonzales’s attorney
argued that the cocaine base did not belong to Gonzales. Under the
circumstances, to argue in the alternative that Gonzales possessed
the drugs without the intent to distribute would have been
inconsistent with Gonzales’s defense.        However, because the
district court did not examine the reasonableness of the decision
in this case, we assume that counsel’s performance fell below the
Strickland reasonableness standard.

                                        4
Gonzales,   No.    93-8266,    slip   op.    at   2-3.   Gonzales    contends,

however, that his counsel’s deficient performance erodes confidence

in the jury verdict because jurors faced with the opportunity might

have acquitted him of possession with intent to distribute and

convicted him of simple possession.3              The mere fact that jurors

might have convicted Gonzales of simple possession does not alter

the fact that they did convict him of possession with intent to

distribute.      Moreover, this conviction is supported by the trial

evidence.     See Gonzales, No. 93-8266, slip op. at 2-3 (“[T]he

evidence    of    Gonzales’s    guilt       was   overwhelming.”).     Absent

prejudice, Gonzales cannot support an ineffective assistance claim

and, thus, fails to state a cognizable basis for habeas relief.

            AFFIRMED.




      3
       That a jury may have acquitted of the greater charge and
convicted of the lesser charge is a prerequisite to a finding that
the latter is a lesser-included offense. See Lucien, 61 F.3d at
374-77.

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