                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 19, 2008
                             No. 07-11268                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 04-20514-CV-ASG

GREGORY RANDOLPH BERRY,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (June 19, 2008)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:
         Gregory Berry appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate his conviction and life sentence for distributing cocaine base, in

violation of 21 U.S.C. § 841. The district court granted a certificate of

appealability on one issue: whether Berry’s trial counsel was constitutionally

deficient for failing to force the government to establish the substance he

distributed was crack cocaine and not cocaine base before, during, or following

trial.

         “In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and factual findings for clear error. A claim of ineffective

assistance of counsel is a mixed question of law and fact that we review de novo.”

Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008) (citation omitted).

“For a factual finding to be clearly erroneous, this court, after reviewing all of the

evidence, must be left with a definite and firm conviction that a mistake has been

committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.

2004) (quotations omitted).

         The U.S. Constitution provides “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” U.S.

Const. Amend. VI. The benchmark for judging a claim of ineffective assistance of

counsel is whether counsel’s performance so undermined the proper functioning of



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the adversarial process the trial cannot be relied on as having produced a just

result. Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984). This showing has

two components: first, the prisoner must show counsel’s performance was

deficient; and second, the prisoner must establish the deficient performance

prejudiced the defense. Id.

      Under the deficient performance prong of the Strickland test, the prisoner

must show counsel made errors so serious he was not functioning as the counsel

guaranteed by the Sixth Amendment. Id. There is a strong presumption that

counsel’s conduct fell within the range of reasonable professional assistance. Id. at

2065. Under the prejudice prong, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 2068.

      Under 21 U.S.C. § 841(b)(1)(A)(iii), an individual who distributes 50 grams

or more of a substance containing “cocaine base,” after 2 or more prior felony drug

offenses have become final shall be sentenced to a mandatory term of life

imprisonment. The Sentencing Guidelines state, “‘[c]ocaine base,’ for the

purposes of this guideline, means ‘crack.’ ‘Crack’ is the street name for a form of

cocaine base, usually prepared by processing cocaine hydrochloride and sodium

bicarbonate, and usually appearing in a lumpy, rocklike form.” U.S.S.G.



                                           3
§ 2D1.1(c), note D. We have held the term “cocaine base” in 21 U.S.C. § 960(b)

should only include crack cocaine because Congress did not explicitly define the

term in the statute and allowed that definition of “cocaine base” to be promulgated

in the Guidelines. United States v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir.

1994) (looking to U.S.S.G. § 2D1.1(c), note D).

      The evidence at Berry’s criminal trial demonstrated the substance he

distributed was crack cocaine. Drug Enforcement Agent Steven Gilbert testified

the substance appeared to be crack cocaine, and confidential informant Dwain

Mallary stated the drugs Berry gave him were crack cocaine. Gilbert also testified

he monitored a telephone conversation during which Berry discussed a prior crack

cocaine sale and indicated he had more crack cocaine. Furthermore, at the

evidentiary hearing, Dr. Terry Hall and Walter Rodriguez indicated the DEA lab

report’s description of the cocaine was consistent with a description of crack

cocaine. Accordingly, the magistrate’s finding the substance at issue was crack

cocaine was not clearly erroneous. See Devine, 520 F.3d at 1287.

      Berry is unable to overcome the strong presumption that counsel’s conduct

fell within the range of reasonable professional assistance. His counsel’s failure to

assert an argument the evidence demonstrated to be false is not deficient

performance. Therefore, as the magistrate judge found, Berry cannot show he was



                                          4
prejudiced by his trial counsel’s failure to challenge whether the substance he

distributed was crack cocaine, because the evidence demonstrated the substance

was crack cocaine. Likewise, Berry’s counsel’s confusion regarding crack cocaine

does not change the result because the evidence shows that any challenge to the

identification of the drugs as crack cocaine would have failed. Accordingly,

Berry’s claim of ineffective assistance of counsel fails, and we affirm the district

court’s denial of his § 2255 motion as to this claim.

      AFFIRMED.




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