                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               October 25, 2006
                              No. 06-10841                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                             D. C. Docket Nos.
                             02-00638-CV-T-N
                             99-00052-CR-T-N


CLINT GRIFFIN,



                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                             (October 25, 2006)

Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:
      Clint Griffin, a federal prisoner proceeding pro se, challenges the district

court’s denial of his motion to vacate, set aside, or correct his sentence, brought

pursuant to 28 U.S.C. § 2255. Griffin argues that both his trial and appellate

counsel were ineffective for failing to appropriately challenge the drug quantity

attributed to him by the sentencing court. He also asserts that the district court, in

reviewing his § 2255 motion, erred in attributing an additional 125 grams of

cocaine base to him when determining that he was not prejudiced by trial counsel’s

failure to object. Because Griffin cannot show under the two-prong test of

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064, 80 L.Ed. 2d

674 (1984), that his trial and appellate counsel were constitutionally ineffective, we

affirm the district court’s denial of Griffin’s § 2255 motion.

                                   BACKGROUND

      Griffin was convicted in federal court of conspiracy to possess with intent to

distribute cocaine and cocaine base, distribution of cocaine, and distribution of

cocaine base. Griffin was sentenced to 151 months of imprisonment.

      At trial, witness Calvin Massey testified that he bought 125 grams of what

he believed was cocaine base from Griffin prior to the conspiracy. At sentencing,

Griffin’s trial counsel objected to the drug quantity attributed to Griffin. He argued

that 65.67 grams of cocaine base should not be attributed because Griffin’s co-



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defendants were not convicted of these charges. The trial court overruled the

objection based on the Sentencing Guidelines (“Guidelines”) definition of relevant

conduct. Including this amount in the totals, the sentencing court found 153.6

grams of cocaine base and 215.7 grams of powder cocaine attributable to Griffin.

This gave Griffin a base offense level of 34, with a criminal history category of 1.

The applicable Guidelines range was 151 to 188 months imprisonment. The court

sentenced Griffin to the minimum term of 151 months.

      On direct appeal, Griffin adopted the briefs and legal arguments of his co-

defendants. In addition, he argued that motion for a mistrial should have been

granted because the court admitted an incriminating extrajudicial statement made

by a co-defendant, Patrick Howard, in violation of Griffin’s Sixth Amendment

right to confrontation. Griffin also argued that a prosecutor’s comment during

closing argument was prejudicial to the point of reversal. Appellate counsel failed

to expressly argue the sentencing court’s drug calculation was in error; however,

by adopting the co-defendants’ briefs, the issue was raised.

      In an unpublished opinion, United States v. Howard, No 99-13258 (11th Cir.

June 18, 2001), we affirmed Griffin’s conviction and sentence. In the same

opinion, we vacated co-defendant Howard’s sentence finding that the district court

erred in determining the drug quantity attributable to Howard’s relevant conduct.



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We did not expressly examine whether the record supported the drug quantity

findings as they pertained to Griffin.

      Griffin then filed a § 2255 motion and argued in his supporting

memorandum of law that his Sixth Amendment right to effective assistance of

counsel was violated by his trial and appellate counsel failure to challenge the drug

quantity attributed to him for the purposes of sentencing. In response, the

government argued that there was no performance deficiency because trial counsel

did challenge the quantity. The government further argued that the Strickland

standard of deficiency and prejudice had not been met. Griffin filed a reply in

which he noted that, although trial counsel did object to the drug quantities

attributed to him, counsel objected on different grounds than those used by this

court to vacate his co-defendant’s sentence. Further he argued that his appellate

counsel was ineffective for failing to raise the successful argument on appeal.

      A magistrate judge reviewed Griffin’s § 2255 motion and made an

independent calculation of the drug quantities attributable to Griffin. In doing so,

she followed our opinion in Howard and reduced the amount attributable to

Griffin. However the magistrate’s review of the record found sufficient evidence of

drug quantities to support a base level of 34. The magistrate recommended the

denial of the § 2255 motion. Although Griffin objected to the report, the district



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court overruled his objections and adopted the report.

      We granted a certificate of appealability on the issue of “whether the district

court erred by finding that the appellant’s trial and appellate counsel were not

ineffective under Strickland for failing challenge the sentencing court’s

determination of the quantity of drugs attributable to him for the purpose of

sentencing.”

                             STANDARD OF REVIEW

      We review “the district court’s findings of fact for clear error and its legal

conclusions and mixed questions of law and fact de novo.” Michael v. Crosby, 430

F.3d 1310, 1318 (11th Cir. 2005), cert. denied, 126 S.Ct. 2025 (2006). “Whether a

particular decision by counsel was a tactical one is a question of fact,” while the

reasonableness of a particular tactical decision is a question of law reviewed de

novo. Holsomback v. White, 133 F.3d 1382, 1386-87 (11th Cir. 1998).

                                    DISCUSSION

      Griffin argues that his trial and appellate counsel were ineffective for failing

to challenge the drug quantity attributed to him. To demonstrate ineffective

assistance of counsel, the defendant must show (1) that counsel’s performance was

deficient and (2) that the same deficiency results in prejudice to the defendant. See

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. “Both showings are necessary for



                                           5
any relief; failure to establish either is fatal and makes it unnecessary to consider

the other.” Rutherford v. Crosby, 385 F.3d 1300, 1308-09 (11th Cir. 2004). To

satisfy the first prong, counsel’s performance must fall “below an objective

standard of reasonableness.” Chandler v. United States, 218 F.3d 1305, 1312 (11th

Cir. 2000)(quoting Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2473, 91

L.Ed.2d 144 (1986)). We evaluate the reasonableness from counsel’s perspective

at the time of the alleged error in light of all circumstances of the case. See

Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. To establish prejudice, the

defendant must show that but for his counsel’s deficient performance the result of

the proceedings would have been different. Id. at 694, 104 S. Ct. at 2068.

      Griffin has not shown his appellate counsel’s performance was deficient.

Griffin argues that counsel was ineffective because he failed to challenge the drug

quantities attributed to Griffin. Although appellate counsel did not expressly argue

this issue, he did adopt the arguments of the co-defendants which included this

issue, thereby raising the issue on appeal. Therefore, Griffin’s ineffective

assistance of counsel claim against his appellate counsel fails the first prong of the

Strickland test.

      Griffin’s claim that trial counsel was ineffective similarly fails. While trial

counsel did not object to the calculation of the base offense level on the same



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grounds successful for Howard on appeal, he did object to the calculation on other

grounds. It is not enough to show that there was an omission or that counsel could

have done more; Griffin must show that this omission fell below the range of

acceptable professional assistance. See Chandler, 218 F.3d. at 1313.

      Nevertheless, assuming counsel was deficient, Griffin has not shown

prejudice resulted. When the magistrate recalculated the sentencing range, Griffin

still had a base level of 34 even given the benefit of our Howard opinion, because

the district court attributed an additional 125 grams of cocaine base to Griffin

based on Massey’s trial testimony. The attribution of the 125 grams is a finding of

fact reviewed for clear error. See Michael, 430 F.3d at 1318. While “sentencing

cannot be based on calculations of drug quantities that are merely speculative,” it

“may be based on fair, accurate, and conservative estimates.” United States v.

Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998) (per curiam). In determining

amounts, the court has wide discretion to consider relevant information provided

that information has sufficient indicia of reliability and the defendant has the

opportunity to challenge evidence against him. United States v. Query, 928 F.2d

383, 384-85 (11th Cir. 1991). The district court relied on Massey’s testimony

regarding the quantity and type of drug purchased from Griffin. It cannot be said

that this was speculative evidence nor was the finding prejudiced by trial counsel’s



                                           7
failure to object. Because there was sufficient evidence to support this finding, the

district court did not clearly err. This additional 125 grams of cocaine base

supports the finding of a base offense level of 34 even if an objection based on

relevant conduct had been successful. Therefore, Griffin cannot show that a

different outcome was possible had his trial counsel raised this specific argument.

Because he is unable to show prejudice under the Strickland standard, this claim

also fails.

       Based on a review of the record and the parties’ briefs, we discern no

reversible error. Accordingly we affirm the district court’s denial of Griffin’s pro

se § 2255 motion.

       AFFIRMED.




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