                                                                          FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          March 16, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                       No. 05-7097
 v.                                          (Nos. CIV-04-224-P and 00-CR-21)
                                                        (E.D. Okla.)
 THOMAS DOSS GANN,

       Defendant-Appellant.


                   ORDER DENYING A CERTIFICATE OF
                           APPEALABILITY


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Thomas Doss Gann, a federal prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255

petition. For substantially the same reasons set forth by the district court, we

DENY Gann’s request for a COA and DISMISS.

      Following a jury trial, Gann was found guilty of seven counts of an eleven-

count indictment relating to a conspiracy to manufacture and distribute

methamphetamine. He was sentenced to three concurrent 240-month sentences,

three concurrent 60-month sentences, and one consecutive 60-month sentence, for

a total term of 300 months’ imprisonment. His conviction was affirmed on

appeal. Gann filed a § 2255 petition in the court below claiming ineffective
assistance of counsel. The district court denied both the petition and Gann’s

subsequent application for a COA. Gann now seeks a COA from this court,

asserting the same claims of ineffective assistance that he raised below. 1

      Gann first argues that his counsel failed to challenge the drug quantity

determination at sentencing. He asserts that the district court determined the

applicable drug amount based on quantities of waste water and other by-products

of the methamphetamine production process. Section 2D1.1 of the Guidelines

prohibits consideration of “materials that must be separated from the controlled

substance before the controlled substance can be used,” and Gann complains that

his counsel did not object to the district court’s consideration of these prohibited

materials. Had counsel successfully challenged the court’s drug quantity finding,

Gann claims that his offense level would have been 26 rather than 36.

      To prevail, Gann must prove that his lawyer’s representation fell below an


      1
         Gann’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Gann to show “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) (quotations omitted). Because the district court denied Gann a COA,
he may not appeal the district court’s decision absent a grant of COA by this
court.

                                          2
objective standard of reasonableness and that the deficient representation

prejudiced Gann. Strickland v. Washington, 446 U.S. 668, 687-88 (1984). Even

if we assume that the trial court did consider methamphetamine waste water and

chemical by-products, and that Gann’s counsel did not object, Gann has not

demonstrated that he was prejudiced. As the court below found, the PSR reported

that the pseudophedrine seized from Gann could potentially yield 507 grams of

methamphetamine (actual). This amount alone suffices to place Gann at a base

offense level of 36. Moreover, trial testimony revealed that one gallon of liquid

methamphetamine was attributable to Gann, which is consistent with the 1,000

milliliters of liquid methamphetamine discussed in the PSR. In sum, Gann’s base

offense level of 36 was supported by facts revealed at trial and at sentencing

without regard to any wastewater or chemical by-products.

      Gann next argues that his counsel failed at sentencing to argue relevant

conduct applicable to Count Three, which charged that Gann maintained a place

for manufacturing, distributing, and using methamphetamine. Pursuant to

U.S.S.G. § 2D1.8(a)(2), one who “had no participation in the underlying

controlled substance offense other than allowing use of the premises,” receives a

four-level reduction in base offense level. Gann asserts that his counsel failed to

argue at sentencing that Gann merely allowed others to use his premises for

manufacturing, distributing, and using methamphetamine, and that Gann had no

other participation on the offense. As this court noted on appeal, the totality of

                                          3
the evidence proves that the methamphetamine distribution conspiracy “was a

‘family business,’ involving Doug Gann, [Thomas] Doss Gann and Irene Gann,

and others, at both the Ridge Drive and Chicken Creek properties.” United States

v. Gann, 58 Fed. Appx. 792, 798 (10th Cir. 2003) (unpublished). Gann presents

no argument challenging this finding. Therefore, he has not shown that counsel

was ineffective for declining to assert that Gann’s only participation in the

conspiracy was to permit use of his property.

      In a related argument, Gann asserts that his counsel should have objected to

the indictment, on the basis of duplicity, given that the indictment lists two

residences under Count Three. It is entirely proper for the government to charge

use of two residences under a single count concerning maintenance of a place for

manufacturing, distributing, and using methamphetamine. See, e.g., Richardson

v. United States, 526 U.S. 813, 817 (1999) (“a federal jury need not always

decide unanimously which of several possible sets of underlying brute facts make

up a particular element, say, which of several possible means the defendant used

to commit an element of the crime”). Moreover, as we previously determined on

appeal, Gann had “a sufficient ‘nexus’ with both properties” to establish his

dominion and control over firearms found at both locations. Gann, 58 Fed. Appx.

at 802. His counsel’s failure to challenge Count Three was not objectively

unreasonable.

      Finally, Gann argues that his trial counsel did not effectively impeach a

                                          4
government witness named Steve Smith. The district court found that “even if

Mr. Smith’s entire testimony were stricken from the record, the result of

Petitioner’s trial would have been the same. Accordingly, Petitioner has failed to

establish prejudice.” Gann has not persuaded us that reasonable jurists could

debate whether the district court should have resolved this issue differently.

      We DENY Gann’s application for a COA and DISMISS. We DENY

Gann’s request for abeyance.

                                              ENTERED FOR THE COURT


                                              Carlos F. Lucero
                                              Circuit Judge




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