                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                No. 99-1814/2436
                                 ___________

Allen Henry McKinney,                   *
                                        *
             Petitioner/Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
United States of America,               *
                                        *      [UNPUBLISHED]
             Respondent/Appellee.       *
                                   ___________

                             Submitted: June 12, 2000
                                 Filed: July 24, 2000
                                  ___________

Before LOKEN and BRIGHT, Circuit Judges, and HAND1, District Judge.
                             ___________

PER CURIAM.

       Allen McKinney appeals the district court’s order denying his § 2255 motion.
The district court certified only the following issue for appeal: should McKinney be
granted an evidentiary hearing in order to show that his counsel provided him with
ineffective assistance during his trial. We now affirm.




      1
      The Honorable William Brevard Hand, United States District Judge for the
Southern District of Alabama, sitting by designation.
                                           I.

         At trial, a jury convicted McKinney of trafficking in the illegal drugs aminorex
and phenethylamine. At the time McKinney was charged, these two drugs were
“designer” drugs, not then listed in the controlled substance schedules administered by
the Justice Department and the Department of Health and Human Services. The
government argued at trial that aminorex and phenethylamine were “analogues” to 4-
methylaminorex and methamphetamine, respectively, and thus, prohibited under the
analogue statute, the Controlled Substance Analogue Enforcement Act (“CSAEA”).
See 21 U.S.C. §§ 802(32), 813. The jury also convicted McKinney of using firearms
during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c).
This court affirmed his conviction on all counts in United States v. McKinney, 79 F.3d
105 (8th Cir. 1996). McKinney appealed, and the Supreme Court remanded the case
in light of Bailey v. United States, 516 U.S. 137 (1995) and Johnson v. United States,
520 U.S. 461 (1997). This court then vacated McKinney’s § 924(c) conviction, see
United States v. McKinney, 120 F.3d 132 (8th Cir. 1997), and, on remand, the district
court resentenced him to 168 months in prison–a sentence that we then upheld on
appeal in United States v. McKinney, 141 F.3d 1171 (8th Cir. 1998) (unpublished).
McKinney then filed this § 2255 motion, arguing that his counsel was ineffective on a
number of grounds, most of which are not now on appeal.

                                           II.

       The sole question before us is whether McKinney is entitled to an evidentiary
hearing in order to show that his trial counsel was ineffective for failing to challenge
the government’s claim that the designer drugs fell within the statutory definition of
“analogue” under the CSAEA and for failing to challenge the district court’s jury
instructions pertaining to the determination of whether these drugs were analogues,
under the CSAEA.


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       We review de novo the denial of McKinney’s § 2255 motion. See United States
v. Duke, 50 F.3d 571, 576 (8th Cir. 1995). An evidentiary hearing on a § 2255 motion
must be granted unless the motion, files and records of the case establish conclusively
that the petitioner is not entitled to relief. Kingsberry v. United States, 202 F.3d 1030,
1032 (8th Cir. 2000). To prevail on his ineffective assistance claim, McKinney needs
to demonstrate that his counsel’s “‘representation fell below an objective standard of
reasonableness’ and that ‘there is a reasonable probability that, but for counsel[’s]
unprofessional errors, the result of the proceeding would have been different.’”
Whitmore v. Lockhart, 8 F.3d 614, 616-17 (8th Cir. 1993) (quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984)).

        Because McKinney suffered no prejudice from counsel’s assistance, we hold that
McKinney is not entitled to an evidentiary hearing on this matter. McKinney makes
three contentions in his brief. All three of his contentions rely upon the premise that
the drug charges for which he was convicted required that the government prove and
that the jury find that the substances McKinney produced and sold were “analogues,”
as statutorily defined by the CSAEA, to either 4-methylaminorex or methamphetamine.
To find an unlisted substance to be an analogue to a controlled substance, the unlisted
substance must satisfy a two-pronged test: (1) it must possess a substantially similar
chemical structure to the controlled substance, and (2) either has a substantially similar
effect on the user’s central nervous system or the defendant represented or intended
that it would have a similar effect on the user’s central nervous system. See 21 U.S.C.
§ 802(32).

       McKinney first argues that, if his trial attorney had engaged in a more vigorous
“battle of the experts” during trial about the analogue status of aminorex and
phenethylamine and had cross-examined the government’s chemical experts more
rigorously before the jury, there was a reasonable probability that the outcome would
have been different. A number of factors convince us that McKinney’s suggestions
would have had little or no impact on the outcome of the case. First, while this case

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was proceeding, the government reclassified aminorex from an analogue to a controlled
substance because of the structural similarity of aminorex to cis-4-methylaminorex2 and
their similarity of function within the human body. Second, McKinney’s attorney at
sentencing did call at least one expert, albeit not before the jury, who testified that
aminorex was an analogue and only later qualified his statement to say that he was
unsure whether or not aminorex was an analogue to 4-methylaminorex. With regard
to phenethylamine, neither McKinney’s conviction nor his sentence would have been
different if the jury had found that phenethylamine was not an analogue. Only one of
the ten counts for which the jury convicted him charged McKinney with trafficking in
phenethylamine, and McKinney’s sentence was based solely on the amounts of
aminorex listed in the indictment because the sentencing guidelines did not contain a
formula for converting phenethylamine quantities into equivalent quantities of
marijuana.

       We also disagree with McKinney’s second argument in which he claims that his
attorney was ineffective for failing to object to the district court’s jury instructions.
McKinney argues that the instructions improperly stated the requirements for finding
a substance to be a controlled substance analogue, and that the judge wrongly
explained to the jury the elements of the crime that the government had to prove
beyond a reasonable doubt.3 More specifically, McKinney argues that the court


      2
      We assume, as did this court in a prior iteration of this case, that cis-4-
methylaminorex is the same substance as 4-methylaminorex. See United States v.
McKinney, 79 F.3d 105, 108 (8th Cir. 1996).
      3
          The district judge stated the relevant jury instructions as follows:

                    You are further instructed that Title 21, United States Code,
      Section 802(32)(A) states as follows: The term ‘controlled substance
      analogue’ means a substance; one, the chemical structure of which is
      substantially similar to the chemical structure of a controlled substance in
      Schedule I or II; two, which has a stimulant, depressant, or hallucinogenic

                                             -4-
confused the jury by stating the requirements for finding a substance to be an
“analogue” in the disjunctive; this phrasing could have misled the jury into believing
that it would have to find only one of the three requirements rather than two. Further,
McKinney argues that by omitting from the instruction a statement to the jury requiring
them to find that aminorex and phenethylamine were analogues, the jury might have
been confused about whether or not this was a fact they had to find beyond a
reasonable doubt. In light of the extensive evidence showing that aminorex was an
analogue of 4-methylaminorex and a later segment of the jury instructions in which the
trial judge stated, “[w]ith respect to alleged distributions prior to September 20, 1992,
you must decide whether aminorex was a controlled substance analogue . . .[,]” we
hold that McKinney was not prejudiced by any error in the jury instructions.

        Finally, McKinney did not raise his third claim–that trial counsel was ineffective
for failing to move to dismiss Count 5 of the indictment because the count improperly


      effect on the central nervous system that is substantially similar to or
      greater than the stimulant, depressant, or hallucinogenic effect on the
      central nervous system of a controlled substance in Schedule I or II; or
      three, which the defendant represents or intends to have a stimulant,
      depressant, or hallucinogenic effect on the central nervous system that is
      substantially similar to or greater than the stimulant, depressant, or
      hallucinogenic effect on the central nervous system of a controlled
      substance in Schedule I or II.

                   In order to sustain its burden of proof for the crime of
      distribution of a controlled substance as charged in Count I of the
      indictment, the Government must prove the following two essential
      elements beyond a reasonable doubt: One, the defendant, Allen
      McKinney, knowingly and intentionally distributed the aminorex as
      described in the indictment; and two, at the time of such distribution, the
      defendant knew that the substance distributed was aminorex.

T. Tr. Vol. VIII at 1244-45.

                                           -5-
alleged an attempt to distribute controlled substances–before the district court, and
therefore, it is not reviewable on appeal. See Central Airlines, Inc. v. United States,
169 F.3d 1174, 1175 (8th Cir. 1999); see also Dorothy J. v. Little Rock Sch. Dist., 7
F.3d 729, 734 (8th Cir. 1993) (“we do not consider arguments raised for the first time
on appeal”).

                                         III.

      Because McKinney cannot prevail on his ineffective assistance of counsel claim,
we deny his motion for an evidentiary hearing on the matter. Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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