UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 97-7806
JOHNATHAN E. SMITH, a/k/a John
Smith,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-93-63-BO, CA-97-321-5-BO)

Submitted: February 26, 1999

Decided: April 22, 1999

Before WILKINS and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

William L. Davis, III, Lumberton, North Carolina, for Appellant.
Janice McKenzie Cole, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Robert E. Skiver, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Johnathan E. Smith appeals from the district court's partial denial
of his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion and his
newly imposed sentence pursuant to the district court's vacatur of his
18 U.S.C.A. § 924(c)(1) (West 1994 & Supp. 1998) conviction under
Bailey v. United States, 516 U.S. 137 (1995). We deny a certificate
of appealability and dismiss as to the district court's denial of his
§ 2255 motion, and affirm his sentence.

Prior to Smith's resentencing hearing, the Probation Officer, rather
than preparing an amended presentence report, sent a memorandum
to the district court judge reiterating Smith's prior offense and crimi-
nal history calculations, and adding a two-level enhancement for pos-
session of a firearm under U.S. Sentencing Guidelines Manual
§ 2D1.1 (1997). Smith contends that because he was not provided
with a copy of this report thirty-five days prior to his resentencing
hearing the district court violated Fed. R. Crim. P. 32 and that he is
therefore entitled to a new sentencing hearing.

Our review reveals that Smith can point to no prejudice resulting
from this alleged technical violation. The only change reflected in the
Probation Officer's memorandum was the addition of a two-point
enhancement under USSG § 2D1.1 for possession of a firearm fol-
lowing the vacatur of his § 924(c) count. Smith does not allege that
he was surprised by this addition, and although the lack of an
amended presentence report precluded his ability to file prior written
objections, the district court heard argument from both Smith and the
Government regarding the propriety of the § 2D1.1 enhancement.
Accordingly, we find that even assuming error, Smith suffered no
prejudice warranting a resentencing hearing.

Smith's remaining claims involve multiple allegations of ineffec-
tive assistance of counsel. To succeed on a claim of ineffective assis-

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tance of counsel, a defendant must show: (1) that his counsel's
performance fell below an objective standard of reasonableness; and
(2) that counsel's deficient performance was prejudicial. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under the
first prong of Strickland, a defendant must demonstrate that counsel's
performance fell below an objective standard of reasonableness under
"prevailing professional norms." Id. at 688. In evaluating counsel's
performance, courts must "indulge a strong presumption that coun-
sel's conduct falls within the wide range of reasonable professional
assistance." Id. at 689. Further, courts must not engage in hindsight;
rather, they must evaluate the reasonableness of counsel's perfor-
mance within the context of the circumstances at the time of the
alleged errors. See id. at 690.

To satisfy the second prong of Strickland, a defendant must dem-
onstrate that there is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 694. "A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome." Id. However, a court
cannot grant relief solely because the outcome would have been dif-
ferent absent counsel's deficient performance. See Lockhart v.
Fretwell, 506 U.S. 364, 369-70 (1993). Instead, a court can only grant
relief under the second prong of Strickland if the "result of the pro-
ceeding was fundamentally unfair or unreliable." Id. at 369.

Our review of the record discloses that Smith has not demonstrated
the prejudice required to prevail on his claims. Accordingly, we con-
clude that the district court properly disposed of these claims without
the use of an evidentiary hearing.

We therefore affirm Smith's sentence, and deny a certificate of
appealability and dismiss his appeal from the district court's denial of
his remaining § 2255 claims. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED IN PART, DISMISSED IN PART

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