                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 1 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 00-3386
                                                 (D.C. No. 98-CV-3168-RDR)
    VINCENT JEROME RIDLEY,                                 (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Vincent Jerome Ridley appeals the district court’s denial of his

motion to vacate, set aside, or correct his sentence, brought pursuant to 28 U.S.C.


*
      This order and judgment is not binding precedent, except under the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.
§ 2255. Because defendant has not made a substantial showing of the denial of a

constitutional right, we deny his application for a certificate of appealability and

dismiss the appeal.

      In July 1997, defendant pled guilty to one count of possessing a controlled

substance with intent to distribute, and in October 1997, he was sentenced to

seventy-eight months’ incarceration. Because the offense involved crack cocaine,

the sentence was significantly higher than it would have been for cocaine powder

or a non-crack form of cocaine base.   See U.S. Sentencing Guideline Manual

§ 2D1.1(c)(7) & Note D (1998);    United States v. Kissick , 69 F.3d 1048, 1052

(10th Cir. 1995). On May 13, 1999, defendant filed this § 2255 motion, alleging

his trial attorney was ineffective by not objecting to the enhanced sentence or

requiring the government to prove that the controlled substance was “crack

cocaine.” After a hearing, the district court determined that the substance was,

indeed, crack cocaine, and therefore counsel was not ineffective. Defendant

appeals.

      Before we may consider this appeal, defendant must obtain a certificate of

appealability by making a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c). Defendant argues there was no evidence from which

the district court could determine that the substance was crack cocaine, and that

the undisputed evidence was that the nature of the substance could not be


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determined simply by looking at it. He argues that this evidence demonstrates he

was deprived of the effective assistance of counsel.

      After reviewing the record, we conclude there was more than enough

evidence, including defendant’s own admissions, to support the district court’s

finding that the substance involved was crack cocaine. The district court based

its finding on police testimony that the seized substance was in the form of crack

cocaine; testimony by the chemist who tested the substance that she had never

tested cocaine base in any form other than crack cocaine, that she had never tested

coca paste, and that she usually used the description “white ‘rock’/powder” to

describe crack cocaine; testimony by defendant’s attorney that defendant admitted

selling crack cocaine from his car; and the inconsistency of defendant’s affidavit

stating that the substance was not crack cocaine with his later testimony that he

did not know what the substance was. R. I, doc. 79 at 4.

      In addition to the evidence identified by the district court, which in itself

supports the court’s factual finding, defendant clearly admitted that the substance

involved was crack cocaine. Count I of the indictment, to which defendant pled

guilty, charged him with possession of “cocaine base (crack cocaine).”     Id. , doc.

1. Further, at the plea hearing, defendant testified under oath that he understood

he was being charged with possessing “crack cocaine,” R. III at 6; that he

understood one of the essential elements of the charge to which he was pleading


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guilty was that the substance was “crack cocaine,”    id. at 15; and that after hearing

the government’s proposed proof that he possessed “crack cocaine,” he was

willing to plead to the charge,   id. at 16-17. Based on these admissions, the

government was relieved of its burden at sentencing to show that the substance

was crack cocaine, and defendant’s attorney was not ineffective in failing to put

the government to its burden.     United States v. Gray , 182 F.3d 762, 768 (10th Cir.

1999) (holding defendant’s guilty plea to indictment specifying that the substance

was “cocaine base ‘crack’” and admissions in petition to plead guilty and at the

plea hearing that substance was “crack” relieved the government of burden at

sentencing and therefore counsel was not ineffective).

       Defendant’s motion for a certificate of appealability is DENIED and the

appeal is DISMISSED.



                                                       Entered for the Court



                                                       Stephen H. Anderson
                                                       Circuit Judge




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