                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      July 11, 2008
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 07-4222
 v.                                            (D.C. No. 2:07-CV-179-TS and
                                                      2:02-CR-87-TS)
 SCOTT D. HEMSLEY,                                        (D. Utah)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


      Scott Hemsley, a federal inmate appearing pro se, seeks a certificate of

appealability (“COA”) so that he may challenge the district court’s denial of his

28 U.S.C. § 2255(a) motion to vacate, set aside, or correct his sentence. Mr.

Hemsley pleaded guilty to the manufacture or attempted manufacture of

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and possession of a

firearm by a restricted person in violation of 18 U.S.C. § 922(g)(3). The district

court sentenced him to 188 months’ imprisonment followed by five years’

supervised release. His conviction was affirmed on direct appeal. See United

States v. Hemsley, 160 F. App’x 804 (10th Cir. 2005) (unpublished). He then

sought relief pursuant to § 2255, asserting two claims of ineffective assistance of
counsel, a claim of constitutional Booker error, and a claim that his sentence is

unconstitutional under Cunningham v. California, 549 U.S. 270 (2007). He does

not pursue his Cunningham claim on appeal. The district court denied relief.

Having determined that Mr. Hemsley has not made a “substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a COA and

dismiss his appeal, see Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

Although Mr. Hemsley also argues that he should receive a COA based upon the

government’s failure to serve him its response to his petition and the district

court’s failure to fix a time for him to reply, Mr. Hemsley has not explained how

these events deprived him of the ability to make a substantial showing of the

denial of a constitutional right.

      We recounted the facts underlying Mr. Hemsley’s case on direct appeal and

need not restate them here. See Hemsley, 160 F. App’x at 805–06. Mr. Hemsley

first contends that his counsel was ineffective for failing to object to the iodine-

to-methamphetamine conversion ratio of 33% adopted by the district court. A

criminal defendant asserting ineffective assistance of trial counsel must show both

deficient performance and prejudice to his defense in order to receive

post-conviction relief. Strickland v. Washington, 466 U.S. 668, 687 (1984). Mr.

Hemsley argues that the prejudice to him was that, on direct appeal, we reviewed

his claim for plain error instead of at a lower standard. This argument

misunderstands the required showing of prejudice. Mr. Hemsley must show

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“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694, i.e., that he would

have likely received a different sentence had his counsel objected. Mr. Hemsley

has not made this showing and we doubt on these facts that he could do so,

particularly where the district court held an evidentiary hearing on the drug-

conversion issue and received a memorandum from a Drug Enforcement

Administration representative saying that 33% was an ultra-conservative ratio.

Hemsley, 160 F. App’x at 807–08.

      Second, Mr. Hemsley argues that his counsel was ineffective for failing to

raise a Booker objection to the judge-found facts that were the basis for the

increase in his sentence. We agree with the district court that because Mr.

Hemsley was sentenced on December 8, 2003, before United States v. Booker,

543 U.S. 220 (2005) was decided on January 12, 2005, his counsel was not

ineffective “for failing to predict future law,” Bullock v. Carver, 297 F.3d 1036,

1052 (10th Cir. 2002) (quotation omitted).

      Finally, Mr. Hemsley argues that his sentence violated the Sixth

Amendment because it was increased based on judge-found facts. The district

court correctly explained that Booker is not retroactive, relying on United States

v. Bellamy, 411 F.3d 1182, 1186 (10th Cir. 2005). On appeal, Mr. Hemsley

argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), was decided before he

was sentenced and makes his sentence unconstitutional. However, Apprendi does

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not apply to sentencing factors which increase a defendant’s guideline range but

do not increase the sentence above the statutory maximum. United States v.

Willis, 476 F.3d 1121, 1131 n.3 (10th Cir. 2007).

      We DENY the motion for a COA and DISMISS the appeal.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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