                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 21, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                    No. 09-3049
          v.                                          District of Kansas
 TYRONE D. TYNER,                              (D.C. No. 2:08-CV-02235-JWL)

                 Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Tyrone D. Tyner, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C. §

2253(c)(1)(B). Because we conclude that Mr. Tyner has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

                                       Background

      In July 2006, Mr. Tyner pled guilty in federal district court to one count of

conspiracy to possess with intent to distribute 50 grams or more of


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; one count of

distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C); and one count of possession of a firearm by an unlawful user of a

controlled substance in violation of 18 U.S.C. § 922(g)(3). The judge sentenced

him to a 120-month term of imprisonment, which was the statutory minimum for

his offenses. In the plea agreement, Mr. Tyner waived his right to appeal and his

right to collaterally attack any matter in connection with his prosecution,

conviction, and sentence.

      Despite the waiver in his plea agreement, Mr. Tyner filed a motion to

vacate his sentence pursuant to 28 U.S.C. § 2255. He alleged that his counsel had

provided ineffective assistance by advising him to plead guilty to conspiracy to

possess with intent to distribute 50 grams or more of methamphetamine.

According to Mr. Tyner, while the overall conspiracy possessed and intended to

distribute 50 grams or more of methamphetamine, he himself never possessed that

large a quantity in any single transaction. He argues that the state was prohibited

by law from reaching the 50-gram threshold by aggregating drug quantities held

by his co-conspirators, that his counsel should have realized this, and that his

counsel should have advised Mr. Tyner not to plead guilty.

      Although the government moved to enforce the plea waiver, the district

court nonetheless reached the merits of Mr. Tyner’s § 2255 petition, as his

ineffective assistance claim arguably fell within the exception of United States v.

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Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (“[A] plea agreement waiver of

postconviction rights does not waive the right to bring a § 2255 petition based on

ineffective assistance of counsel claims challenging the validity of the plea or the

waiver.”). The court then held that counsel was not deficient in advising Mr.

Tyner to plead guilty to conspiracy to possess and distribute more than 50 grams

of methamphetamine because that advice reflected a correct understanding of the

law. While Mr. Tyner had argued that the requisite drug quantities under § 841

could not be met by aggregating quantities that the defendant had produced in

separate transactions over a series of months, none of the cases he relied upon

were conspiracy cases. Mr. Tyner had been charged with conspiracy to possess

and distribute more than 50 grams of methamphetamine, and for a conspiracy the

relevant calculation would be the aggregate quantity possessed by the co-

conspirators in furtherance of a common scheme. The court reasoned that

because the charge had appropriately aggregated drug quantities, Mr. Tyner’s

counsel had not been ineffective in advising him to plead guilty to that charge. It

therefore denied his § 2255 petition and subsequent request for COA.

                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

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make such a showing, a petitioner must demonstrate that “reasonable jurists could

debate whether . . . 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 quotation marks

omitted).

      Oddly, Mr. Tyner’s appellate brief before this court and his application for

COA make no mention of his ineffectiveness claim. Instead of focusing on his

counsel, his arguments relate to the district court and its failure to question

whether the drug quantities were sufficient to satisfy the charge. His application

for COA, for instance, frames the issue as, “Whether the district court abused its

discretion when aggregating defendant[’]s charged and uncharged drug quantities

for the purpose of triggering the mandatory maximum penalty range §

841(b)(1)(A)?” COA App. 2. Similarly, his appellate brief states that the only

issue before us is, “Whether a district court abuses its discretion when using

uncharged drug type with c[ha]rged drug type in order to trigger a higher penalty

range under § 841(b)(1)?” Aplt. Br. 3. A challenge to his actual sentence would

be waived under the plea agreement, would not fall under the Cockerham

exception, and would also be barred by the fact that he did not raise this claim in

his § 2255 petition before the district court. To the extent that Mr. Tyner is now

trying to challenge anything other than the effectiveness of his counsel, such

arguments are not properly before us.

                                          -4-
      Out of an abundance of caution, however, we will assume that Mr. Tyner’s

arguments concerning the aggregation of drug quantities is in fact the same

argument he made before the district court—that his counsel was ineffective in

not realizing that the charging documents had erroneously aggregated the drug

quantities. As the district court pointed out, Mr. Tyner’s argument fails to

appreciate the distinction between being charged with conspiracy and being

charged as an individual distributor. Aggregation is appropriate in the former

even if not in the latter. In conspiracy, the statutory quantity may be determined

“on the basis of [drugs] possessed by another conspirator, so long as the amount

is within the scope of the conspiracy and foreseeable.” United States v. Arias-

Santos, 39 F.3d 1070, 1078 (10th Cir. 1994); see also United States v. Asch, 207

F.3d 1238, 1245 n.7 (10th Cir. 2000) (“[A]n individual convicted of conspiracy to

distribute is liable, under § 841(b), for all amounts handled by other conspirators

that are within the scope of the agreement and reasonably foreseeable to the

defendant.”); United States v. Irvin, 2 F.3d 72, 77 (4th Cir. 1993) (holding that

while drug quantities of co-conspirators should not be automatically aggregated,

they should be aggregated if they were reasonably foreseeable to the defendant).

So long as the amounts of methamphetamine possessed by the coconspirators fell

within the scope of the conspiracy and were reasonably foreseeable, it is

appropriate to aggregate the quantities for purposes of triggering the statutory

minimum.

                                         -5-
      Mr. Tyner has relied heavily on the Sixth Circuit case of United States v.

Sandlin, 291 F.3d 875, 879 (6th Cir. 2002), which held that “discrete acts of

possession cannot be aggregated for purposes of calculating the quantity

necessary to trigger a mandatory-minimum sentence for ‘a violation’ of 21 U.S.C.

§ 841(a)(1).” In Sandlin, however, the defendant had been charged as an

individual with manufacturing drugs in violation of § 841(a)(1). Mr. Tyner’s

violation, however, is one of conspiracy to distribute drugs. The Sixth Circuit

itself has distinguished Sandlin in cases of conspiracy. See United States v.

Davis, 107 Fed. App’x 596, 600 (6th Cir. 2004), vacated on other grounds, 543

U.S. 1113 (2005) (“[B]ecause Davis pleaded guilty to involvement in a drug

conspiracy, the district court was authorized to consider the drug quantities that

she personally distributed as well as any amounts that she reasonably could have

foreseen her coconspirators would distribute.”).

      Mr. Tyner admits that the aggregate quantity possessed by his co-

conspirators exceeded 50 grams, and our precedent indicates that these quantities

should be aggregated for purposes of triggering the mandatory minimum for a

conspiracy charge. Mr. Tyner has therefore not made a substantial showing that

he was denied the right to effective assistance of counsel under the Sixth

Amendment.




                                         -6-
                                   Conclusion

      Accordingly, we DENY Mr. Tyner’s request for a COA and DISMISS this

appeal. As Mr. Tyner was represented by CJA counsel in the original criminal

proceedings and allowed to proceed in forma pauperis in a prior appeal, his ifp

status carries over. Fed. R. App. P. 24(a)(3). We therefore DENY his Motion to

Proceed in former pauperis as moot.

                                                  Entered for the Court,

                                                  Michael W. McConnell
                                                  Circuit Judge




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