                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-1719
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the District
                                         * of Minnesota.
Sylvan Anthony Pinque,                   *
                                         *         [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: February 11, 2003

                                   Filed: April 2, 2003
                                    ___________

Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

       Sylvan Pinque was convicted on two counts of distributing cocaine base
(crack) and two counts of conspiring to distribute and to possess crack with the intent
to distribute it. See 21 U.S.C. §§ 841(a)(1), 846. When he appealed his convictions,
we affirmed. See United States v. Pinque, 234 F.3d 374, 379 (8th Cir. 2000), cert.
denied, 532 U.S. 1044 (2001). Mr. Pinque then moved for post-conviction relief
under 28 U.S.C. § 2255, contending that the sentencing court erroneously applied a
ten-year mandatory minimum sentence to two of the counts on which he was
convicted and that his counsel was ineffective for failing to challenge that
application. The district court1 held a hearing and denied the motion. We affirm.

                                          I.
      The basis for Mr. Pinque's claims is the sentencing court's conclusion that "the
minimum term of imprisonment is 10 years" for two of the counts with which
Mr. Pinque was charged. Mr. Pinque argues that this was an incorrect statement of
the law and that all four counts that he was charged with carried a mandatory
minimum sentence of five years. Assuming arguendo that the sentencing judge was
mistaken as to the applicable mandatory minimum sentence, we conclude that that
mistake did not prejudice Mr. Pinque in any way. Based upon Mr. Pinque's total
offense level and criminal history, the sentencing guidelines provided for a term of
imprisonment of between 121 and 151 months. Therefore, the shortest sentence that
Mr. Pinque could have received was 121 months, and the mistake as to the minimum
mandatory sentence was immaterial.

      Mr. Pinque argues that if he had known that the minimum mandatory sentence
was five years rather than ten, he would have urged additional reasons on the court
for a downward departure. But Mr. Pinque does not identify any grounds for
departing that the sentencing court did not already consider. Accordingly, we reject
Mr. Pinque's argument.

                                          II.
      Mr. Pinque also claims that his counsel was ineffective for failing to object to
the sentencing court's reference to the ten-year mandatory minimum sentence. To
succeed on this claim, Mr. Pinque must show that his counsel's performance was



      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.

                                         -2-
deficient and that the deficient performance prejudiced his defense. See Strickland
v. Washington, 466 U.S. 668, 687 (1984).

       We need not decide whether counsel was deficient, because, as we have already
said, there was no prejudice to Mr. Pinque in any event. See id. at 697; see also
Evans v. United States, 200 F.3d 549, 551 (8th Cir. 2000). He therefore cannot
demonstrate that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different,"
Strickland, 466 U.S. at 694. His ineffective assistance claim thus must fail.

      For the foregoing reasons, we affirm the judgment of the district court.

      A true copy.

            Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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