                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 4 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-6356
                                                   (D.C. No. 97-CV-1255-M)
    ROY LEON LINDSEY, JR.,                               (W.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before TACHA and McKAY, Circuit Judges, and BROWN, ** Senior District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Roy Leon Lindsey, Jr. pled guilty to possession of methamphetamine with

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

125 months in prison. He voluntarily dismissed his direct appeal. He now

appeals the district court’s denial of his motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255. Lindsey contends that his counsel was

constitutionally ineffective for failing to challenge the quantity of

methamphetamine and his alleged ownership of a gun listed in his presentence

report and for failing to request a downward departure. He also contends that the

district court erred by failing to hold an evidentiary hearing and correspondingly

to appoint counsel to represent him. We previously granted Lindsey a certificate

of appealability and appointed counsel to represent him on appeal. Because the

district court did not make any factual findings, our review of its denial of

Lindsey’s § 2255 motion is de novo. See United States v. Cox, 83 F.3d 336, 338

(10th Cir.1996).

      Lindsey was arrested after a fire he had built on the floor of his stalled

vehicle got out of control, and firefighters and Oklahoma state police arrived to

extinguish the fire and investigate. In the partially burned vehicle, officers found

a loaded .357 Ruger pistol under the driver’s seat, several lumps of a white


                                          -2-
substance that appeared to be wrapped in plastic and packed in bundles, and

various glassware including beakers, flasks and tubing. The presentence report

noted that the gun was owned by and registered to Lindsey. The report also stated

that lab analysis determined that the bundles recovered from the vehicle had a

weight of 454 grams including packaging and that the substance in the bundles

was methamphetamine weighing 198.36 grams. Lindsey did not object to these

statements in the presentence report, and the district court relied on the stated

amount of methamphetamine (U.S.S.G. § 2D1.1(c)(7)) and possession of the gun

(U.S.S.G. § 2D1.1(b)(1)) in determining his offense level. 1

      In his § 2255 motion, Lindsey contends that his counsel was ineffective for

failing to challenge the amount of methamphetamine and his alleged ownership of

the gun. 2 He contends that because the methamphetamine melted together with its

plastic wrapping in the vehicle fire, the lab analysis of the relative weights of

methamphetamine and wrapping may have been wrong. Therefore, he continues,

his counsel should have obtained an independent estimate of the amount of the

drug, and “[d]epending on the estimate and the district court’s assessment of its

reliability, Lindsey’s offense level may well have been lower.” Appellant’s


1
     The district court used the 1995 edition of the Sentencing Guidelines
Manual.
2
       The brief filed by appointed counsel did not address the gun, but Lindsey’s
pro se brief filed prior to the appointment of counsel did.

                                          -3-
Suppl. Opening Br. at 11. He also contends that because he has never owned or

registered a .357 Ruger pistol and was not aware it was in the vehicle, his counsel

should have challenged his two-level adjustment for possession of the gun.

      To establish ineffective assistance of counsel, a defendant must show both

that his counsel’s performance was constitutionally deficient, and that this

deficient performance prejudiced him. See Strickland v. Washington, 466 U.S.

668, 687 (1984). Under the first prong of this test, a defendant must establish

“that counsel made errors so serious that [he] was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. Under this standard,

“[j]udicial scrutiny of counsel’s performance must be highly deferential,” and

the court must avoid the “distorting effects of hindsight.” Id. at 689. Under the

second prong of the Strickland test, a defendant must establish 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.

      We conclude that Lindsey has failed to show that his counsel was

constitutionally ineffective. He has made no allegation, much less presented any

evidence, that the lab analysis of the amount of methamphetamine was wrong.

He is simply speculating that it may have been wrong, that through appointment

of counsel, further analysis and an evidentiary hearing, he may be able to show

that the amount of the drug he possessed was disputed, and that the district court


                                         -4-
may have found his theoretical evidence more credible. Such layers of

speculation are insufficient to show prejudice. See Grisby v. Blodgett, 130 F.3d

365, 373 (9th Cir. 1997); Garrett v. United States, 78 F.3d 1296, 1302 (8th Cir.

1996). Moreover, defendant personally was in the best position to inform his

counsel both that the amount of methamphetamine he admitted possessing was

overstated 3 and that he did not own the gun the presentence report stated was

registered in his name, yet he does not contend that he told his counsel about

these alleged errors. In this regard, defendant thus cannot fault his counsel for

failing to challenge the presentence report. Cf. United States v. King, 936 F.2d

477, 480 (10th Cir. 1991) (“An attorney’s failure to investigate cannot be charged

as a claim of ‘ineffective assistance of counsel’ when the essential and

foundational information required to trigger such an investigation is withheld

from the defendant’s attorney by the defendant himself.”) (quotation omitted).

      Lindsey also claims that his counsel was ineffective for failing to request

a downward departure on the basis that his criminal history category

overrepresented the seriousness of his criminal past because his criminal history

consisted largely of non-violent, substance-abuse related conduct. Lindsey’s past

does not present a strong case for departure. His criminal history category of VI



3
     Nor has he ever stated in this § 2255 action that, based on his personal
knowledge, the amount was overstated.

                                         -5-
(13 or more points) resulted from his accumulation of 17 points for convictions

for possession of marijuana, driving after declared habitual traffic violator,

possession of drug paraphernalia, aggravated false impersonation, driving under

the influence of alcohol (twice), theft by deception, and serving a sentence at the

time of offense. Other convictions for possession of methamphetamine and

paraphernalia were not counted because they were related offenses. See U.S.S.G.

§ 4A1.2 Application Note 3. He had eight other arrests that included six drunk

driving charges and several charges for possession of marijuana and

methamphetamine that were dismissed as parts of plea agreements. His criminal

conduct has continued from 1985 to the time of his current offense. Cf. U.S.S.G.

§ 4A1.3 (citing as example of possibly overrepresentative criminal history level,

case of defendant with two minor misdemeanor convictions close to ten years

prior to the instant offense and no other evidence of criminal behavior in

intervening period). As we have said before, “driving under the influence of

alcohol is not inherently non-violent.” United States v. Jones, 80 F.3d 436, 439

n.2 (10th Cir. 1996). Finally, counsel did state at sentencing that most of

Lindsey’s crimes were substance-abuse related, so the court was aware of this as

a possible basis for departure. 4 Given this situation, counsel’s failure to request a



4
     The court was also aware of this information when, from a range of 110 to
137 months, it chose to sentence Lindsey to 125 months.

                                          -6-
downward departure was not such a serious error, if error at all, that his counsel’s

performance was constitutionally deficient.

      Because Lindsey’s ineffective counsel claims lack merit, the district court

did not abuse its discretion by not holding an evidentiary hearing. See Lasiter v.

Thomas, 89 F.3d 699, 702 (10th Cir. 1996). The judgment of the district court

is AFFIRMED.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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