                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 7, 2016
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                      No. 15-3174
 CHICO C. DAVIS,                              (D.C. Nos. 15-CV-1069-MLB and
                                                  6:11-CR-10194-MLB-1)
          Defendant - Appellant.                          (D. Kan.)


                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY *


Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.


      Defendant Chico Davis pled guilty to one count of distributing cocaine base

and one count of distributing 50 grams or more of a methamphetamine mixture, in

violation of 21 U.S.C. § 841(a)(1), and eight counts of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). Relying on Defendant’s serious

criminal history and the 93% purity of the methamphetamine involved in this case,

the district court varied upward from the recommended guideline sentencing range

of 151 to 188 months and sentenced Defendant to 308 months in prison. 1

      *
        This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        The district court subsequently reduced Defendant’s sentence from 308
months to 271 months pursuant to 18 U.S.C. § 3582(c)(2).
      A panel of this Court affirmed. United States v. Davis, 599 F. App’x 815

(10th Cir. 2013) (unpublished).    We assume the reader’s familiarity with that

decision. In brief, the panel ably explained the complex calculation of Defendant’s

recommended guideline range and the justifications for an upward variance.

Employing plain error review, the panel rejected Defendant’s argument that the

district court failed to adequately consider “his argument that the recommended

Guidelines sentence was already enhanced based on the ten-to-one disparity between

actual methamphetamine versus methamphetamine mixture in the calculation of his

Guidelines sentence.”    Id. at 819.    The panel held “the district court gave

[Defendant’s] disparity argument its sufficient due,” and committed no legal error

“at all.” Id. at 820. The Supreme Court denied certiorari.

      Defendant next filed a motion for post-conviction relief pursuant to 28 U.S.C.

§ 2255. In his motion Defendant thrice recast the argument he made on direct

appeal, with no success. First, he claimed his counsel was ineffective in failing to

object to the district court’s failure to address his sentencing disparity argument.

Second, he claimed he was indicted for a mixture containing methamphetamine but

inappropriately sentenced for actual methamphetamine. Third, Defendant claimed

his sentencing range was improperly enhanced based on facts not alleged in the

indictment. The district court summarily rejected Defendant’s arguments, denied his

§ 2255 motion, and informed him that any application for a certificate of

appealability (COA) would also be denied.       See 28 U.S.C. § 2253(c).      After

                                         2
Defendant filed a notice of appeal, the district court pursuant to 28 U.S.C.

§ 1915(a)(3), certified his appeal was not taken in good faith and denied his motion

to proceed on appeal in forma pauperis (IFP).           Now before this Court are

Defendant’s renewed application for a COA and motion to proceed IFP.

      Defendant may not appeal the denial of relief under § 2255 without a COA.

28 U.S.C. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To

satisfy this standard, Defendant must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been resolved

in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotations omitted). Our careful record review reveals that Defendant

cannot satisfy the standard for issuance of a COA.

      Defendant’s first claim—that he received ineffective assistance of counsel

based on counsel’s failure to understand the applicable case law and hence press the

aforementioned disparity argument upon the district court—is frivolous. As the

panel opinion explained in some detail, Defendant’s disparity argument, which his

counsel raised in the context of an objection to an upward variance both in a

sentencing memorandum and at the sentencing hearing, is a loser. 2 See Chico, 599


      2
          In Chico, plain error review applied because Defendant “did not raise a
                                                                   (continued...)

                                          3
F. App’x at 20. Thus, Defendant cannot satisfy the prejudice prong of the Sixth

Amendment’s ineffective assistance standard. See Strickland v. Washington, 466

U.S. 668, 688, 694 (1984).

      Defendant’s argument that he was indicted for a methamphetamine mixture but

improperly sentenced for pure methamphetamine is also wholly without merit. As

the panel opinion explained:

      The Guidelines dictate that a defendant’s advisory sentencing range for
      methamphetamine distribution is to be calculated using whichever drug
      weight—actual or mixed—would produce the greater offense level. See
      U.S.S.G. § 2D1.1(c)(B) . . . . In [Defendant’s] case, the ‘actual
      methamphetamine” amount of 53.3913 grams produced the greater
      offense level.

Chico, 599 F. App’x at 817 (emphasis added).

      Lastly, Defendant says his sentence is unconstitutional in view of Supreme

Court decisions that prohibit enhancement of a statutory mandatory minimum or

statutory maximum sentence based on facts not charged in the indictment. See

Apprendi v. New Jersey, 530 U.S. 466 (2000) (addressing statutory maximums);

Alleyne v. United States, 133 S. Ct. 2151 (2013) (addressing statutory mandatory

minimums). We think not. As the district court informed Defendant at his plea

hearing, Defendant’s mandatory minimum sentence was five years and his statutory

maximum was 40 years. See 21 U.S.C. § 841(b)(1)(B) (viii). At sentencing, the


      2
       (...continued)
contemporaneous objection to the district court’s explanation of his sentence at the
time of the hearing.” 599 F. App’x at 819.

                                         4
court found no fact that increased either the statutory mandatory minimum or

maximum sentence for Defendant’s methamphetamine offense.

     Accordingly, Defendant’s application for a COA is DENIED and this appeal

is DISMISSED. Defendant’s motion to proceed on appeal IFP is DENIED as moot.

                                   Entered for the Court,



                                   Bobby R. Baldock
                                   United States Circuit Judge




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