                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 18 2002
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 02-3150
          v.                                             (D. Kansas)
 DONALD RAY BROOMFIELD,                              (01-CV-3328-DES)

               Defendant-Appellant.




                            ORDER AND JUDGMENT          *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.


      After examining the appellant’s brief and appellate record, this panel has

determined unanimously to honor appellant’s request for decision on the briefs

without oral argument. See Fed. R. App. P. 34(f). The case is, therefore, ordered

submitted without oral argument.

      Donald Broomfield seeks a certificate of appealability (“COA”) to appeal

the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his conviction


      *
        This order and judgment is not binding precedent, except under the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.
and sentence. In order for this court to grant a certificate of appealability, a

petitioner must make a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). In addressing the requirements for obtaining a

certificate of appealability under § 2253(c), the Supreme Court stated that a

defendant must show a substantial denial of a constitutional right by

demonstrating that “reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

                                   I. BACKGROUND

       Mr. Broomfield was convicted on November 18, 1998 of possessing with

intent to distribute a mixture containing cocaine base, in violation of 21 U.S.C. §

841(a)(1). Mr. Broomfield was sentenced to 120 months’ imprisonment and five

years’ supervised release, and his conviction was upheld on direct appeal.     See

United States v. Broomfield , 201 F.3d 1270 (10th Cir.),    cert. denied, 531 U.S. 830

(2000).

       Mr. Broomfield filed a pro se motion with the district court pursuant to 28

U.S.C. § 2255 to “vacate, set aside, or correct” his sentence, arguing that (1) he

received ineffective assistance of counsel because trial counsel failed to inform

him of the “safety valve” provision of the sentencing guidelines,     see USSG §


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5C1.2, (2) he qualified for a two-point reduction in offense level pursuant to

USSG §2D1.1(b)(6), and (3) the district court erred when it applied 21 U.S.C. §

841, pursuant to Apprendi v. New Jersey , 530 U.S. 466 (2000). The district court

appointed counsel and held an evidentiary hearing on the ineffective assistance of

counsel claim. The district court concluded that none of Mr. Broomfield’s claims

was meritorious and denied Mr. Broomfield a certificate of appealability. On

appeal, Mr. Broomfield raises only the ineffective assistance claim and the

constitutional challenge to 21 U.S.C. § 841.

                                   II. DISCUSSION

      Counsel for defendant has filed a brief pursuant to       Anders v. California ,

386 U.S. 738 (1967), indicating his belief that the record contains no meritorious

issues for appeal. Defense counsel has also filed a motion requesting leave to

withdraw as counsel, stating his belief that the issues raised on appeal are

frivolous. As required, copies of counsel’s         Anders brief and motion to withdraw

were provided to defendant.    See id. at 744. Pursuant to our duty under     Anders ,

we have conducted an independent review of Mr. Broomfield’s conviction and

sentence. We agree with counsel’s conscientious review of the record and with

his conclusion that the appeal is without merit.

      As to Mr. Broomfield’s ineffective assistance claim, Mr. Broomfield claims

that his attorney failed to inform him of the safety valve provisions in USSG §



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5C1.2. Mr. Broomfield’s trial counsel testified at the evidentiary hearing that he

had sent Mr. Broomfield a letter that set out the provisions of § 5C1.2’s safety

valve provisions. Mr. Broomfield testified however, either that he did not recall

reading the paragraph that explained the safety valve provisions or that the copy

of the letter that he received contained no such paragraph. Further hearing

testimony also indicated that Mr. Broomfield was aware that his co-defendant had

cooperated with the government and had received sentencing concessions in

exchange for that cooperation, pursuant to § 5C1.2. The court found that the

defendant had been informed about “the general operation of the safety valve

provision.” Rec. doc. 146, at 6 (Dist. Ct. Order, filed Apr. 4, 2002). We agree

that Mr. Broomfield’s ineffective assistance claim is without merit.

       In his second argument on appeal, Mr. Broomfield asserts that, in the wake

of Apprendi , the district court lacked authority to impose a sentence under § 841.

This argument, however, as Mr. Broomfield’s appellate counsel acknowledges, is

foreclosed by our holding in   United States v. Cernobyl , 255 F.3d 1215, 1219

(10th Cir. 2001) (joining other circuits in “holding that § 841 remains

constitutionally enforceable” and noting that “    Apprendi in no way conflicts with

the explicit terms of the [§ 841]”). We agree that Mr. Broomfield’s challenge to

the constitutionality of § 841 is without merit.




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                                III. CONCLUSION

      Because Mr. Broomfield has made no substantial showing of the denial of a

constitutional right, we DENY his application for a certificate of appealability

and DISMISS the appeal. We GRANT counsel’s motion to withdraw.




                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




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