                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JAN 29 1998
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

    v.                                                 No. 97-6111
                                                  (D.C. No. CIV-97-52-C)
    KEVIN L. JOHNSON,                                  (W.D. Okla.)

             Defendant-Appellant.




    UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

    v.                                                  No 97-6162
                                                  (D.C. No. 96-CV-2127)
    CHIQUITA VELETA OWENS,                             (W.D. Okla.)

             Defendant-Appellant.




                          ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.


*
      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.

                                 Case No. 97-6111

      Kevin Johnson was convicted of drug-related charges, and his conviction

was affirmed by this court. See United States v. Owens, 70 F.3d 1118 (10th Cir.

1995). Johnson’s petition filed pursuant to 28 U.S.C. § 2255 was denied by the

district court, and Johnson appeals. We affirm.

      On direct appeal, Johnson argued that (1) the prosecution failed to present

sufficient evidence that he was a member of a conspiracy to distribute cocaine or

cocaine base; (2) there was insufficient evidence that he conspired to distribute

cocaine base as opposed to cocaine; (3) the attribution of 6.995 kilograms of

cocaine base to him was erroneous; and (4) his sentence should not have been

enhanced for obstruction of justice.

             As grounds for his § 2255 motion, Johnson argues that he should

have been granted an evidentiary hearing to demonstrate (1) there was no

evidence that he possessed crack cocaine as opposed to cocaine powder; (2) there


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was insufficient evidence that he conspired to distribute cocaine powder and (3)

he received ineffective assistance of counsel when counsel failed to press the

distinction between crack cocaine and cocaine powder at trial. He also contends

that amendment 487 to USSG § 2D1.1 should have applied to his case and that the

sentencing court did not make the required findings of foreseeability required

under § 1B1.3.

      On direct appeal, this court held that “at least 1.5 kilograms of cocaine base

were attributable to [Johnson].” Id. at 1131. It is clear from reading that opinion

that the court used the term “cocaine base” to mean crack cocaine because the

panel carefully distinguished the amount of cocaine base possessed by Johnson

from the amount of cocaine powder attributable to him. See id. 1 This court

stated “our review of the record shows there was ample evidence from which a

reasonable jury could conclude the actions of Nick Owens, Kevin Johnson, and

the other three coconspirators tried with them were all part of a single, unified

conspiracy to distribute cocaine in the Musgrave Addition area of Oklahoma

City.” Id. at 1126-27. 2 We will not revisit this conclusion. See United States v.

1
      Further, by the time the opinion in Johnson’s direct appeal was issued, the
Sentencing Guidelines had been amended to make it clear that the term “cocaine
base” means crack cocaine. See U.S. Sentencing Guidelines Manual Amendment
487 to § 2D1.1, effective November 1, 1993.
2
    As a subset of this argument, Johnson argues that the court failed to apply
Amendment 487 to § 2D1.1 of the Sentencing Guidelines to his case. The court
                                                                    (continued...)

                                         -3-
Galloway, 56 F.3d 1239, 1243 (10th Cir. 1995) (observing that reasons advanced

on direct appeal in support of an ineffective assistance of counsel claim cannot be

reurged in a § 2255 motion because of the doctrine of issue preclusion).

      Johnson further argues that there was insufficient evidence to convict him

of conspiracy to distribute cocaine powder. 3 Johnson, however, was convicted of

one count of conspiracy to distribute cocaine powder and/or cocaine base. Our

review of the sentencing hearing makes it clear that Johnson was sentenced based

on the amount of cocaine base attributable to him and not because of any evidence

regarding his involvement with cocaine powder. See R. “Reporter’s Transcript of

Proceedings, Tuesday, November 1, 1994" (Sentencing of Kevin Johnson) at 2, 5

(court ascribed 6.995 kilos to Johnson, and later specified that the cocaine was

cocaine base). Johnson’s argument regarding evidence of his involvement with

cocaine powder, therefore, is irrelevant.

      Johnson next contends that he received ineffective assistance of trial

counsel because of counsel’s failure to press the distinction between cocaine base

and cocaine powder. Because this court has already concluded that the evidence

2
 (...continued)
clearly applied this amendment and correctly distinguished between cocaine base
(“crack”) and other forms of cocaine. The fact that the court concluded that
Johnson distributed cocaine base does not mean that the Amendment was not
applied.
3
      We will accord Johnson the benefit of the doubt and conclude that this
issue was raised on direct appeal, however obliquely.

                                        -4-
supported Johnson’s conviction for conspiracy to distribute cocaine base, it was

not ineffective for counsel to fail to press this meritless point. See United States

v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996).

      Finally, Johnson argues that the court failed to apply § 1B1.3 of the

Sentencing Guidelines to his case. Because Johnson failed to raise this argument

on direct appeal, and because he has not demonstrated cause for this default and

prejudice from the error he asserts, we will not review this claim in this § 2255

action. See United States v. Holland, 116 F.3d 1353, 1356 (10th Cir. 1997).

Because the existing record clearly shows that Johnson is not entitled to relief, the

district court did not abuse its discretion in denying him an evidentiary hearing.

See Lopez, 100 F.3d at 119.

      We grant Johnson’s motion for leave to proceed without prepayment of

costs or fees and dismiss the appeal for lack of a substantial showing of the denial

of a constitutional right required by 28 U.S.C. § 2253(c)(2), as amended by the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1217 (April 24, 1996).

                                  Case No. 97-6162

      The same jury that convicted Kevin Johnson of conspiracy to distribute

cocaine powder and/or cocaine base also convicted Chiquita Owens of the same

charge. This court affirmed Owens’ conviction in an unpublished opinion. See


                                          -5-
United States v. Gaines, Nos. 94-6408 & 94-6410, 1995 WL 678504 (10th Cir.

Nov. 15, 1995).

      In her § 2255 petition, Owens argues that (1) her counsel was ineffective;

(2) the district court erred in calculating the base offense level when it failed to

consider whether the conversion of powder cocaine into crack was foreseeable by

Owens (applying § 1B1.3 of the Sentencing Guidelines); and (3) “whether the

district court had the authority to depart under their own discretion for the

defendant because of mitigating circumstances,” Br. of petitioner at 17.

      The district court noted that Owens failed to raise the last two issues on

direct appeal. In order to circumvent this problem, however, Owens argues that it

was ineffective for her appellate counsel to omit these arguments on appeal.

Because the district court found the last two arguments to be without merit, it also

found there was no ineffective assistance and denied the petition. We affirm.

      As part of her ineffectiveness claim, Owens argues that she only agreed to

transport powder cocaine and that both trial and appellate attorneys failed to press

this distinction to the respective courts. Further, argues Owens, it was not

foreseeable that the powder she transported would be “rocked up” into crack.

      In the direct appeal of another of the coconspirators involved in this

distribution scheme, this court, after reviewing the entire record, stated that

“Chiquita Owens occasionally distributed 2.5 kilogram doses of crack cocaine,


                                          -6-
supplied by Timothy Johnson and helped Chris Scott reach Timothy Johnson to

buy drugs when Timothy Johnson did not respond to his pager.” United States v.

Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). Similarly, in response to Owens’

§ 2255 petition, the district court stated “[t]he evidence was that the powder

cocaine was actually cooked at this defendant’s residence and she had knowledge

of the conversion to crack cocaine and its subsequent distribution.” United States

v. Owens, No. CIV-96-2127-C, Order at 2 (W.D. Okla, Apr. 29, 1997).

      We have reviewed the transcript of the trial in this matter and find no merit

to Owens’ contention that she was only involved with powder cocaine or that she

could not have reasonably foreseen that the powder she transported would be

converted into crack cocaine. The district court also correctly disposed of

Owens’ claim for relief based on the failure to depart downward from the

sentencing guidelines. We therefore affirm the order of the district court for

substantially the reasons stated therein.

      This appeal is dismissed for lack of a substantial showing of the denial of a

constitutional right required by 28 U.S.C. § 2253(c)(2), as amended by the




                                            -7-
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 (April 24, 1996). The mandates in both cases shall issue forthwith.



                                                   Entered for the Court



                                                   James E. Barrett
                                                   Senior Circuit Judge




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