                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                      FOR THE TENTH CIRCUIT                       August 7, 2018
                    _________________________________
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff–Appellee,

v.                                                No. 18-3110
                                       (D.C. Nos. 5:16-CV-04115-JAR and
KENNIN DEWBERRY,                             5:11-CR-40078-JAR-6)
                                                    (D. Kan.)
      Defendant–Appellant.
                 _________________________________

                                 ORDER
                    _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

     Mr. Kennin Dewberry was convicted of (1) conspiring to distribute

280 grams or more of crack cocaine and (2) conspiring to distribute five or

more kilograms of powder cocaine. See 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(ii), 841(b)(1)(A)(iii), 846. Because of a prior felony drug

conviction, the statutory minimum was twenty years’ imprisonment. 21

U.S.C. § 841(b)(1)(A). The district court imposed the statutory minimum.

     Mr. Dewberry appealed, and we affirmed. United States v. Dewberry,

790 F.3d 1022, 1036 (10th Cir. 2015). Mr. Dewberry then filed a motion to

vacate the conviction under 28 U.S.C. § 2255, and the district court denied

the motion. Mr. Dewberry wants to appeal. To do so, however, he needs a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). Accordingly, Mr.
Dewberry seeks a certificate of appealability, alleging ineffective

assistance of counsel for failing to

           call Mr. Virok Webb as a witness,

           object to the government’s allegation of a prior conviction for a
            felony drug offense, and

           challenge a statutory enhancement in the direct appeal.

      We decline to issue a certificate of appealability.

I.    Standard for a Certificate of Appealability

      To determine whether to grant a certificate of appealability, we

consider the standard that would govern if the appeal were to proceed. If it

did, we would engage in de novo review, applying the same standard that

governed in district court. United States v. Snyder, 871 F.3d 1122, 1125

(10th Cir. 2017). Here, however, we do not engage in a full review of the

merits. Instead, we consider only whether the district court’s ruling was

debatable. Buck v. Davis, 137 S. Ct. 759, 774 (2017).

      Mr. Dewberry would meet this minimal burden only if a reasonable

jurist could debate the merit of one or more of his claims. These claims

required Mr. Dewberry to show that his attorney’s actions had been

deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 688, 692

(1984); see also United States v. Challoner, 583 F.3d 745, 749 (10th Cir.

2009) (applying Strickland to appellate counsel).




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      To prove a deficiency, Mr. Dewberry had to show that counsel’s

representation had fallen below an objective standard of reasonableness.

Strickland, 466 U.S. at 688. But a merits panel would presume that the

legal representation was adequate and that the attorney used reasonable

judgment. Challoner, 583 F.3d at 749. In light of this presumption, Mr.

Dewberry’s claims do not surpass the minimal threshold for a certificate of

appealability.

II.   Failure to Call Mr. Webb to Testify

      Mr. Dewberry argues that if his attorney had called Virok Webb to

testify, an acquittal would have been more likely. But even if Mr. Webb’s

testimony would have made a difference, Mr. Dewberry could not show a

deficiency in the representation.

      Mr. Dewberry’s attorney had no opportunity to meet with Mr. Webb,

who denied multiple requests for an interview. The attorney would have

had to call Mr. Webb to the stand without knowing what he would say in

his testimony. This tactic would have been risky, and the attorney made a

strategic decision not to call Mr. Webb as a witness without knowing what

he would say. 1 Any reasonable jurist would regard this decision as a

reasonable exercise of judgment.



1
      As the district court recognized, calling Mr. Webb as a witness would
allow the government to reveal that he had bought cocaine from an
individual identified by others as Mr. Dewberry. United States v.
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III.   Failure to Object to the Use of Prior Drug Felony

       The government alleged that Mr. Dewberry was subject to an

enhanced minimum sentence because of a prior conviction for a felony

drug offense. See 21 U.S.C. § 841(b)(1)(A). A felony drug offense is “an

offense that is punishable by imprisonment for more than one year under

any law of the United States . . . that prohibits or restricts conduct relating

to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant

substances.” 21 U.S.C. § 802(44). In light of this definition, the district

court ruled that Mr. Dewberry had a prior felony drug conviction, relying

on a conviction for conspiracy to distribute and possess with the intent to

distribute more than 100 kilograms of marijuana. United States v.

Dewberry, No. 4:07-cr-00727-CAS-7, Docket No. 159 (E.D. Mo. Sept. 11,

2008).

       Mr. Dewberry argues that his counsel was deficient for failing to

object to the use of this prior drug conviction. According to Mr. Dewberry,

his prior conviction was not for a felony drug offense because he was

sentenced only to probation and home confinement. But the actual sentence

is irrelevant; what matters is the statutory maximum. 21 U.S.C. § 802(44).

       Mr. Dewberry’s reliance on United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) (en banc) is misguided. In Simmons, the court stated that


Dewberry, No. 11-40078-06-JAR, 2018 WL 1456524, at *11 (W.D. Kan.
Mar. 23, 2018).
                                          4
the defendant “could not have received a sentence exceeding eight months’

community punishment” for his prior conviction. Id. at 243. Because Mr.

Dewberry’s prior conviction was for a crime punishable by imprisonment

for more than one year, he qualified for the enhancement. As a result,

Simmons is plainly inapplicable and no reasonable jurist would find a

deficiency based on the absence of an objection to the use of a prior drug

felony.

IV.   Failure to Appeal an Enhancement

      Finally, Mr. Dewberry alleges that his appellate counsel was

ineffective for failing to raise winning arguments.

      To show that appellate counsel is ineffective for failing to raise an

issue, the omitted issue must have been “‘obvious from the trial record and

one which would have resulted in a reversal on appeal.’” United States v.

Challoner, 583 F.3d 745, 749 (10th Cir. 2009) (emphasis in original)

(quoting United States v. Cook, 45 F.3d 388, 395 (10th Cir. 1995)).

      The district court denied relief because Mr. Dewberry had failed to

identify the issues that his counsel should have appealed. He mentions only

one: that his attorney should have challenged the sentence enhancement.

But this argument probably would have failed on direct appeal because

Mr. Dewberry was convicted of a prior felony drug offense. See Part III,

above. Thus, his appellate attorney could not have effectively challenged

the enhancement. In these circumstances, no jurist could reasonably credit

                                         5
Mr. Dewberry’s claim of ineffective assistance for failing to raise an issue

on appeal.

V.    Disposition

      We decline to issue a certificate of appealability. In the absence of a

certificate, we dismiss the appeal.

                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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