                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT


                     _______________________

                           No. 99-50476
                         Summary Calendar
                     _______________________


UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                             versus

HOWARD JAMES BELL,

                                            Defendant-Appellant.


____________________________________________________________

        Appeal from the United States District Court
              for the Western District of Texas
                  Civil Docket #W-97-CV-321
____________________________________________________________

                        December 20, 2000

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

             The only issue on appeal is whether the district

court properly rejected Bell’s § 2255 petition raising a claim

of counsel’s ineffectiveness at sentencing. Finding no error,

we affirm.




*
 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this opinion should not be published and is not precedent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.
             In 1996, Howard James Bell (federal inmate # 57238-

097) pleaded guilty to conspiracy to distribute and possess

with intent to distribute methamphetamine, in violation of 21

U.S.C. § 841(a)(1).

             At sentencing, Bell’s attorney did not object to the

four-level enhancement for Bell’s role in the offense.                     He

objected successfully to other enhancements, however, and as

a   result,     the     court    sentenced        Bell      to   210   months’

imprisonment, followed by five years’ supervised release, and

imposed a fine of $5000.          Bell’s direct appeal was dismissed

as untimely.

             After a series of procedural maneuvers, Bell was

given leave to pursue a § 2255 motion in district court in

which   he    alleged    his    trial       counsel   was   constitutionally

ineffective for failing to object to a four-level sentence

enhancement for Bell’s role as an organizer or leader in the

offense.     U.S.S.G. § 3B1.1.

             Disagreeing       with     his    position,     the   Government

submitted     the   affidavit     of    Bell’s    trial      attorney,   Brian

Pollard.      Pollard recalled that Bell was reluctant to talk

about any drug dealing he may have had or about what he had

told law enforcement personnel during debriefing prior to

counsel’s appointment.           Pollard stated that he calculated

Bell’s potential sentence under the guidelines and assumed,



                                        2
inter alia, that Bell would be found to be an organizer or

leader. He sent copies of his calculations to Bell and Bell’s

California attorney, William Logan.     Pollard asserted that he

had several conversations with Bell prior to the guilty plea.

When he received the PSR, he immediately sent copies to Bell

and Logan and asked Bell to advise counsel if he had any

objections.   Pollard’s notes showed that he subsequently

talked with Bell and presumably that they had discussed any

objections.    After   visiting     Bell,   counsel   raised   three

objections to the PSR, not including an objection to the

organizer/leader enhancement.       Pollard did not recall Bell

saying that he wanted to object to that enhancement.

          The district court held that Bell was not denied

effective assistance of counsel and denied his § 2255 motion.

The court found that the PSR supported the organizer/leader

enhancement, that counsel could not have been ineffective for

failing to present meritless objections, and that Bell could

not have been prejudiced by counsel’s failure to object to the

enhancement because Bell had presented nothing that would

indicate that such objection would have been granted.           This

court granted Bell a COA to appeal.

                          DISCUSSION

          Bell argues that he was denied effective assistance

of counsel, who failed to object to the four-level adjustment



                                3
to his base offense level for his role as an organizer or

leader of a criminal activity that involved five or more

participants or was otherwise extensive.

            Bell’s       PSR     recommended        a    four-level      upward

adjustment under U.S.S.G. § 3B1.1(a) for being a leader or

organizer of criminal activity that involved five or more

participants      or   was     otherwise     extensive.         The   probation

officer    outlined      three    factors        upon   which   he    based   his

conclusion that Bell played a organizational or leadership

role: (1) Bell was the source for all the methamphetamine

distributed by Hooper and the other co-conspirators, showing

Bell’s participation to a greater degree in the commission of

the offense; (2) “Bell controlled the price to be paid by

Hooper/Murphy      for   the     methamphetamine        that    was   purchased

thereby claiming a right to a larger share of the fruits of

the crime”; and (3) Bell packaged the methamphetamine and

shipped it via Federal Express “thereby participating to a

greater degree” in the commission of the offense. Counsel did

not object to this adjustment.

            To prevail on a claim of ineffective assistance of

counsel,   a     defendant      must   show:      (1)   that    his   counsel’s

performance was deficient in that it fell below an objective

standard    of    reasonableness;          and    (2)   that    the   deficient

performance prejudiced his defense. Strickland v. Washington,



                                       4
466 U.S. 668, 689-94 (1984).                 A failure to establish either

deficient performance or prejudice defeats the claim.                        Id. at

697.    To show that his attorney’s performance at sentencing

was prejudicial under Strickland, Bell must demonstrate that

there is a reasonable probability that but for counsel’s

ineffective     assistance,          the      sentence       would    have     been

significantly less harsh. Spriggs v. Collins, 993 F.2d 85, 88

(5th Cir. 1993) (emphasis added).

            If counsel had successfully defeated any adjustment

for Bell’s role in the offense, Bell’s total offense level

would   have   been    31    which      combined      with    his    category    II

criminal history, would have resulted in a guideline range of

121 to 151 months, rather than a range of 188 to 235 months.

See R. 1, 132.    If counsel was deficient in not objecting to

the four-level enhancement, this resulted in a specific,

demonstrable enhancement to Bell’s sentence and, thus, was

prejudicial. See United States v. Phillips, 210 F.3d 345, 351

(5th Cir. 2000).            Accordingly, this court must determine

whether    counsel’s    failure         to    raise    a     challenge    to    the

leadership-role enhancement constituted deficient performance.

            A defendant’s base offense level may be increased

four levels if he was an organizer or leader of a criminal

activity   involving        five   or      more   participants.          U.S.S.G.

§ 3B1.1(a).      A § 3B1.1 adjustment is proper only if the



                                         5
defendant was an organizer, leader, manager, or supervisor “of

at least one other person who was criminally culpable in,

though not necessarily convicted for, the endeavor."1                   United

States v. Gross, 26 F.3d 552, 555 (5th Cir. 1994); see

§ 3B1.1, comment. (n.2). To distinguish whether the defendant

played     an    organizational/leadership            role    or     played     a

management/supervisory role, the court should consider the

following       factors:   (1)   the       exercise    of    decision-making

authority; (2) the nature of participation in the commission

of the offense; (3) the recruitment of accomplices; (4) the

claimed right to a larger share of the fruits of the crime;

(5) the degree of participation in planning or organizing the

offense; (6) the nature and scope of the illegal activity; and

(7) the degree of control and authority exercised over others.

§ 3B1.1, comment. (n.4).

            Bell, who lived in California, admitted that he

supplied Hopper, a Texas truck driver, with approximately

seven to 15 pounds of methamphetamine on and off within a

year’s time.      The methamphetamine was destined for Harold Joe

Murphy’s    distribution     network        in   Waco,      Texas.     In     the


1
   If the defendant did not organize, lead, manage, or
supervise another participant, an upward departure, but not
the base offense level increase, may be warranted if the
defendant nevertheless exercised management responsibility
over the property, assets, or activities of a criminal
organization. § 3B1.1, comment. (n.2); see United States v.
Jobe, 101 F.3d 1046, 1068 (5th Cir. 1996).

                                       6
beginning, Bell supplied Hopper with small quantities and when

Hopper figured out that Bell could get more, Bell obtained a

pound   of   methamphetamine        for   Hopper.      At   first,    Hopper

traveled     to   California   to    pick   up   the   drugs   from   Bell,

sometimes accompanied by Murphy.             Hopper later figured out

that they could use Federal Express to transport the drugs.

Hopper would telephone Bell to set up the drug purchase and

the transfer of money; Hopper would then send a cashier’s

check in payment to Bell or his associate/partner, Hasan.

Bell would buy one pound of methamphetamine for from $4,000 to

$9,000, and would sell it for $9,000 to $11,000 per pound.                At

one time, Bell had several sources of his supply, including

Raymond Hajjaj.      Bell was described as working for Hajjaj and

as Hajjaj’s right-hand man.

             Bell asserts that these facts presented in the PSR

did not support the finding that he was a leader or organizer.

He asserts that there was “no discussion” that the criminal

activity involved five or more participants.                    Bell also

asserts that there is no evidence that he exercised decision-

making authority, recruited accomplices, claimed a right to a

larger share of the fruits of the crime, had a higher degree

of participation in planning or organizing the offense, or had

any control or authority over others.




                                      7
             The Government argues that an objection to the

§ 3B1.1(a) enhancement would not have been successful.                      The

Government argues that Bell (1) controlled the supply of all

of the methamphetamine distributed by Hopper and the co-

conspirators in the Waco area and thus played a central role

and participated to a greater degree in the commission of the

offense; (2) controlled the price of the methamphetamine paid

by Hopper and Murphy, controlled the method of payment by

requiring     cashiers’     checks,         some      made     payable       to

intermediaries,     and   fronted        drugs   to   Murphy    and,    thus,

manifesting    control    and   decision-making         authority      in   the

offense; (3) attempted to collect debts and thus to maintain

discipline    as   evidenced    by   Murphy’s         assertion   he    began

receiving threats after Hopper demanded payment of his own fee

and said that Bell wanted his payment for the fronted drugs;

(4) used deputies and unwitting participants to cash checks

for him; (5) profited from his sale of the drugs and, thus, it

could be inferred that he received the largest share of the

fruits of the conspiracy; and (6) controlled the packaging at

his residence and shipment of the drugs via Federal Express

and, thus, played a leadership role.             The Government asserts

that this evidence showed Bell’s exercise of control and

authority which supported the leadership adjustment.




                                     8
             It   is    clear     from   the        PSR   that        the   conspiracy

involved far more than five participants.                       The case involved

the four indicted codefendants three other named participants,

and others.

             Moreover, from the foregoing facts, the district

court found Bell’s contention that he was not an organizer or

leader under § 3B1.1 unfounded, while the PSR’s contrary

conclusion was “fully supported by the record.”                                   We are

mindful that a fact finding that a defendant is an organizer-

leader would be reviewed on direct appeal for clear error.

United States v. Lage, 183 F.3d 374, 383-84 (5th Cir. 1999),

cert. denied, 120 S.Ct. 1179 (2000). Thus, Bell bears a heavy

burden in demonstrating that counsel would necessarily have

prevailed in objecting to this enhancement in the district

court or on appeal.

             After      careful     reviewing         the       PSR    and     relevant

portions     of   the     record,     we      are     unpersuaded            by    Bell’s

arguments.        Bell’s    pivotal          role    as     a    supplier         to   the

conspiracy also placed him in the position of packaging and

arranging delivery of the drugs, controlling the price, taking

a large share of the profit, enforcing payment from Murphy,

fronting drug deliveries on credit, and using dupes to receive

some of the disguised payments.                Individually, none of these

actions might qualify for a sentencing enhancement.                               But put



                                         9
together, they would surely have shielded the district court’s

finding that Bell was an organizer/leader from reversal for

clear   error.     Bell’s   trial   counsel   was   thus   not

constitutionally deficient, and the trial court correctly

denied § 2255 relief.

          AFFIRMED.




                              10
