                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JAN 28 2002
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 01-1232
 MIKE KING, also known as Lamont                        (D.C. No. 97-N-1924)
 Pennomon, also known as Robert Woods,                        (D. Colo.)
 also known as Eric Larry Goins, also
 known as Lamont Pennon,

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before HENRY, BRISCOE and MURPHY, Circuit Judges.


      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

      Defendant Mike King seeks a certificate of appealability to appeal the denial of his


      *
        This order and judgment is not binding precedent, except under the doctrines of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.
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Because he has

failed to make a “substantial showing of the denial of a constitutional right” as required

by 28 U.S.C. § 2253(c)(2), we deny a certificate of appealability and dismiss the appeal.

       King pled guilty to one count of distribution and possession of crack cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a) and § 841(b)(1)(A)(iii), and was

sentenced to 292 months’ imprisonment. It is uncontroverted that, because King’s

offense involved crack cocaine, his sentence was significantly higher than it would have

been if the offense involved cocaine powder or a non-crack form of cocaine base. See

U.S.S.G. § 2D1.1(c) & Note D (1998); United States v. Kissick, 69 F.3d 1048, 1052 (10th

Cir. 1995) (discussing the 1993 amendment to § 2D1.1(c) that clarified the meaning of

the term “cocaine base”). Following this court’s affirmance of his sentence on direct

appeal, United States v. King, No. 96-1040, 1996 WL 470321 (10th Cir. Aug. 20, 1996),

King filed a § 2255 motion to vacate, set aside, or correct his sentence. In support of his

motion, King argued that his trial counsel was ineffective for failing to object to the

enhanced sentence or to require the government to prove that the controlled substance

involved in the offense was “crack cocaine.” The district court rejected King’s motion,

concluding “that the substance used in calculating defendant’s base offense level was

crack cocaine, that counsel was not ineffective for not arguing otherwise, and that

defendant has not demonstrated the prejudice necessary to prevail” on his ineffective

assistance claim. App. at 27.


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       To obtain relief on his § 2255 motion on the basis of ineffective assistance of

counsel, King must show a constitutionally deficient performance by his counsel and that

prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687 (1984). King

contends there was nothing in the record demonstrating that the substance for which he

was sentenced was crack cocaine. Thus, King argues, his counsel “knew or should have

known that the failure of the government to meet its burden under the guideline definition

of ‘crack’ warranted a guideline sentence for powder cocaine.” Aplt. Br. at 10.

       After reviewing the record on appeal, we agree with the district court that King has

failed to establish deficient performance or prejudice. During his change-of-plea hearing,

King was asked by the district court to describe the conduct that formed the basis of his

plea. King responded, under oath, that he “had packages sent through mail to” a friend’s

house, that he “flew there the day before . . . and . . . received the package, signed for it,

and on that day . . . [was] arrested.” App. at 53. When asked by the district court what

the package contained, King responded, again under oath, that it contained “506 grams”

of “[c]rack cocaine.” Id. at 54. King’s admissions thus “relieve[d] the government of any

burden it had at sentencing to show that the drug involved was crack” cocaine, and King’s

attorney was not ineffective for failing to put the government to its burden. United States

v. Gray, 182 F.3d 762, 768 (10th Cir. 1999) (rejecting similar ineffective assistance

claim).

       King’s request for a certificate of appealability is DENIED and the appeal is


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DISMISSED. The mandate shall issue forthwith.

                                            Entered for the Court

                                            Mary Beck Briscoe
                                            Circuit Judge




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