                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          AUG 9 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                        No. 02-6022
 v.                                              (D.C. No. CIV-00-204-A,
                                                       CR-98-54-A)
 THADDEUS BLACK,                                     (W.D. Oklahoma)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.


      Defendant-Appellant Thaddeus Black appeals from the denial of his § 2255

motion, arguing that he received constitutionally ineffective assistance of counsel

during sentencing after pleading guilty to distribution of cocaine powder and

money laundering. Previously, we vacated and remanded the district court’s

denial of the motion, ruling that an evidentiary hearing was required to determine



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
the merits of Black’s claim. See United States v. Black, No. 00-6225, 2001 WL

505965 (10th Cir. May 14, 2001). The district court held such a hearing, over the

course of three days, taking testimony from several witnesses, including the

attorney whose performance is at issue.

      Black’s ineffective assistance claim arises from his attorney’s withdrawal

of his objections to the court’s consideration during sentencing of Black’s alleged

possession of certain drug quantities as relevant conduct, and his stipulation to a

base offense level of 34 for the cocaine possession charge. After hearing

evidence on remand, the district court found that, while one of the withdrawn

objections would have been successful, the other objection would have failed, and

Black would have ended up with the same base offense level of 34. Accordingly,

the district court ruled that Black had not shown that he suffered prejudice, as is

required for an ineffective assistance claim under Strickland v. Washington, 466

U.S. 668 (1984).

      Given the district court’s reasoning, this appeal turns on only one of the

withdrawn objections. Black contends that his counsel should have objected to

the court’s consideration, as part of the relevant conduct inquiry, of 6.1 ounces of

crack cocaine seized by the police because the government failed to connect

Black to the cocaine. While acknowledging that hearsay evidence may be used at

sentencing, Black argues that the government’s showing was insufficient because


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it consisted of a government agent’s “interpretations of out-of-court statements

and the review of three year old investigative reports.” (Br. at 23.) We have

reviewed the transcript of the evidentiary hearing, and agree with the district

court that an objection to consideration of the 6.1 ounces would have been

fruitless. As the district court recognized:

      The government could have presented strong evidence at sentencing, if
      the objection had not been withdrawn, that Mr. Black used the Winns’
      residence [at which the 6.1 ounces of cocaine were found] to store and
      sell crack cocaine. His connection to the residence was shown by many
      sources. The incriminating information supplied by the Winns, Mr.
      Bufford, and Mr. Robinson was corroborated by other evidence
      obtained by law enforcement, including surveillance and controlled
      drug buys. Most telling, however, was independent evidence obtained
      through the execution of the search warrant. Mr. Black’s relationship
      to the residence was plainly shown by the presence of his personal
      papers, such as the receipt [for an attorney’s services in unrelated
      proceedings] and birth certificate, in the bedroom [where the cocaine
      was found]. This creates a strong inference that he was using the house
      for his own purposes, an inference that is not rebutted by any evidence
      or innocent explanation. Other evidence shows that one purpose for
      which Black used the house was drug dealing. Therefore, if the Court
      had heard at sentencing the presentation that the government could have
      made, but for the withdrawal of the objection, then Mr. Black’s
      objection [to consideration of the 6.1 ounces] would have been
      overruled.

(Order at 6-7.)

      Black challenges various aspects of the government’s evidentiary showing,

including offering affidavits from several witnesses contradicting earlier

statements they made to investigators. Even taking these recantations at face

value, however, there was sufficient evidence connecting Black to the 6.1 ounces

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of cocaine, and the district court did not commit clear error by finding that the

government had satisfied its burden of establishing such a connection. See

United States v. Fortier, 180 F.3d 1217, 1225 (10th Cir. 1999) (“[F]acts within

the realm of relevant conduct must be proved by a preponderance of evidence.”).

Black does not dispute that consideration of the 6.1 ounces, standing alone,

supports a base offense level of 34; as such, he “failed to establish that he would

have received a shorter sentence but for counsel’s alleged error.” (Order at 7.)



                                  CONCLUSION

      Black’s request for a certificate of appealability is DENIED. This appeal is

DISMISSED.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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