                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                          MAR 30 1999
                      UNITED STATES COURT OF APPEALS

                             FOR THE TENTH CIRCUIT                    PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-1131
                                                      (D.C. No. 97-B-777)
    ROBERT F. TILLEY,                                      (D. Colo.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) 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      This order and judgment is not binding precedent, except under the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.
       Defendant Robert F. Tilley was indicted in January 1995 on six counts

including possession with intent to distribute methamphetamine, possession of

listed chemicals with intent to manufacture methamphetamine, possession of

equipment with intent to manufacture a controlled substance, and possession of

P 2P with intent to manufacture a controlled substance. In exchange for dismissal

of the other counts, he pled guilty to the first count in the indictment, possession

with intent to distribute 100 or more grams of methamphetamine, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), and was sentenced, inter alia, to 135

months’ imprisonment. He did not file a direct appeal.

       In the present action, defendant filed a motion on April 16, 1997, seeking

to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on two

bases: (1) that the government failed to prove that the methamphetamine involved

was d-methamphetamine, the isomer on which his sentence was based and which,

under the sentencing guidelines in effect at the time (1994 edition), provided for

a significantly stiffer sentence than the   l-isomer; and (2) that his counsel was

constitutionally ineffective for failing to raise this issue at sentencing. The

district court concluded that there was sufficient evidence that at least some of the

methamphetamine was the        d-type to support defendant’s enhanced sentence. It

also concluded that defendant was not prejudiced by his counsel’s failure to raise

this issue at sentencing because his sentence would have been the same based on


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his admission that he possessed 14,795 grams of the precursor chemical P    2   P. The

court therefore denied defendant’s motion and denied his request for a certificate

of appealability. Defendant filed a timely notice of appeal, and the matter is now

before us on his request that we issue a certificate of appealability on the issue of

whether his counsel was ineffective at sentencing.

      To be entitled to a certificate of appealability, defendant must make

“a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To prove that his counsel was constitutionally ineffective,

defendant must show that counsel’s performance was deficient and he was

prejudiced by his counsel’s deficient performance.     See Strickland v. Washington ,

466 U.S. 668, 687 (1984). We agree with the district court that defendant cannot

show the requisite prejudice to sustain his claim of ineffective counsel.

      Regardless of whether the methamphetamine for which he was convicted

was the d or l isomer, in his plea agreement, “defendant acknowledge[d] that the

amounts of controlled substances and listed precursor chemicals involved in

Counts Two, Three and Five of the Indictment are relevant conduct for the

purpose of computation of his sentence.” Suppl. App. Vol. II, Plea Agreement

at 2; see also United States v. McCann , 940 F.2d 1352, 1358 (10th Cir. 1991)

(district court must “consider all relevant chemicals in sentencing, not just those

chemicals charged in the indictment”). Relevant to Count Five, in which he was


                                           -3-
charged with possession of P       2   P, defendant agreed that the police seized from him

14,795 grams of P 2P. See Suppl. App. Vol. II, Plea Agreement at 5. As the

government argued in the district court, under U.S.S.G. § 2D1.1’s Drug

Equivalency Tables, possession of this quantity of P               2   P for the purpose of

manufacturing methamphetamine results in the same base offense level of 34

that resulted from defendant’s conviction for possession with intent to distribute

methamphetamine. In response, defendant contended only that P                     2   P was not a

controlled substance and the entire amount of the P            2   P should not be considered

because it was contained in waste water. In denying his petition, the district court

noted that the sentence could be sustained based solely on the amount of P                       2   P

defendant admitted possessing, as the government had argued.

       On appeal, defendant raises three arguments why the district court’s

conclusion that the P   2   P supported his sentence is incorrect. First, he repeats his

contention that the P   2   P was contained in wastewater and that under U.S.S.G.

§ 2D1.1 Application Note 1, the entire quantity cannot be considered in

determining the base offense level. However, without any mention of waste

water, his plea agreement stated that he possessed 14,795 grams of P                     2   P, and

nothing else in the record indicates the P        2   P was contained in waste water. In

contrast, where presumably waste water was involved, the plea agreement stated

that “[a]n unknown liquid containing a detectable but minor amount of


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methamphetamine” was also seized.         See Suppl. App. Vol. II, Plea Agreement

at 5. We thus reject his contention that the P          2   P was contained in waste water and

conclude the entire 14,795 grams of P        2   P may be used for sentencing purposes.

       Defendant next contends that there was no evidence that he possessed the

P 2P for the purpose of manufacturing methamphetamine and that a different

equivalency table multiplier--for all other cases--should have been applied, which

would result in a significantly lower base offense level. Defendant did not raise

this argument in the district court, and except in cases of the most manifest error

or injustice, which this case does not present, we will not consider such issues on

appeal. See Sac & Fox Nation v. Hanson             , 47 F.3d 1061, 1063 & n.2 (10th Cir.

1995). Moreover, even were we to consider this argument, we would find it

unavailing. In concluding that the P     2   P supported defendant’s sentence, the

district court implicitly found that he possessed it for the purpose of

manufacturing methamphetamine, since it used that multiplier as the government

had argued.    See United States v. Wyne , 41 F.3d 1405, 1408 (10th Cir. 1994)

(approving use of implicit finding at sentencing where finding was necessary

basis for district court’s ruling);   United States v. Tavano , 12 F.3d 301, 307

(1st Cir. 1993) (approving use of implicit findings where consistent with detailed

suggestion advanced by party). Defendant’s possession of various precursor

chemicals, glassware and equipment that he admitted were part of his


                                                  -5-
methamphetamine lab, even though he claimed he had not used the lab in five

years, was sufficient evidence to support the district court’s finding of possession

of the P 2P for the purpose of manufacturing methamphetamine.

       Finally, defendant contends that reliance on the P         2   P to sustain his sentence

is improper because it fails to consider his offense level reductions for acceptance

of responsibility and assistance to authorities. As noted earlier, the P           2   P leads to

the same base offense level of 34 as the methamphetamine, and the reductions are

considered subsequently in both situations. Use of P        2   P thus supports the same

ultimate sentence as the methamphetamine.

       We conclude that defendant has failed to make a substantial showing of the

denial of a constitutional right. His application for a certificate of appealability is

DENIED, and the appeal is DISMISSED.



                                                         Entered for the Court



                                                         Paul J. Kelly, Jr.
                                                         Circuit Judge




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