                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           DEC 22 1997
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 97-7056
                                                    (D.C. No. CV-96-228-S)
    MARI DEVON BEASLEY,                                   (E.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges.




         After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

         Defendant appeals from a district court order denying his motion to vacate,

set aside, or correct sentence under 28 U.S.C. § 2255. The motion was filed after


*
      This order and judgment is not binding precedent, except under the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.
the effective date of the Antiterrorism and Effective Death Penalty Act of 1996,

so the availability of review is conditioned on the issuance of a certificate of

appealability pursuant to 28 U.S.C. § 2253. See United States v. Kunzman,

125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Because defendant has not “made a

substantial showing of the denial of a constitutional right,” § 2253(c)(2), we deny

his application for the certificate and dismiss the appeal.

        Defendant pled guilty to possession with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a). At the plea hearing, the district court evidently

underestimated the quantity of cocaine base involved and consequently misstated

the mandatory statutory sentencing range as 5 to 40 years, see § 841(b)(1)(B)(iii)

(five grams), instead of 10 years to life, 1 see § 841(b)(1)(A)(iii) (fifty grams).

However, before sentencing, the government offered to stipulate that defendant

met the criteria in 18 U.S.C. § 3553(f) exempting him from these statutory

directives in any event, and the parties accordingly agreed upon imposition of

a sentence in the range specified by the sentencing guidelines applicable to the

facts of the case, i.e., 87 to 108 months.

        The sentencing judge accepted the parties’ stipulations, indicated his

intention to impose the minimum sentence in the guideline range, and yet still



1
        The parties ultimately stipulated to a quantity of 92.61 grams of cocaine
base.

                                             -2-
offered defendant the opportunity to withdraw his plea in light of the prior

misadvisement regarding the (now inapplicable) statutory sentencing directives.

After conferring with counsel, defendant persisted in his guilty plea and received

the preindicated 87-month sentence. He did not take an appeal.

      In his § 2255 motion, defendant raised several objections to his conviction

and sentence, only two of which he continues to argue on appeal. The principal

thrust of his complaints is that, having been indicted for and pled to a generalized

cocaine offense, he could not be convicted and sentenced for trafficking in

cocaine base. As a corollary to this substantive claim, and in excuse for its

belated assertion, defendant also contends that counsel was constitutionally

ineffective for failing to prevent or subsequently challenge the alleged variance

between his indictment/plea and conviction/sentence. 2

      One basic point undermines both claims. Section 841(a) indiscriminately

prohibits “trafficking in cocaine, no matter what the form,” United States v.

Easter, 981 F.2d 1549, 1557 (10th Cir. 1992) (emphasis added)--§ 841(b), with its

type and quantity specifications, “is merely a penalty provision and as such does

not change the elements of cocaine trafficking offenses,” id. Thus, “the identity


2
       Defendant has now added a new and distinct ineffective assistance claim,
for failure to take a requested appeal, which he argues is independent of his
substantive objections and, therefore, does not stand or fall on their merits. This
claim was not raised in the district court and, consequently, is not properly before
us. See United States v. Cook, 997 F.2d 1312, 1316 (10th Cir. 1993).

                                         -3-
of the involved controlled substance as being ‘cocaine base’ rather than simply

‘cocaine’ is not an element of any section 841(a)(1) offense. For [this]

offense . . ., the indictment need only allege . . . cocaine, and whether or not it

was the ‘cocaine base’ form . . . is purely a sentencing factor.” 3 United States v.

Deisch, 20 F.3d 139, 151 (5th Cir. 1994); see United States v. Lewis, 113 F.3d

487, 493 (3d Cir. 1997). Accordingly, it was entirely proper for defendant to be

sentenced for cocaine base--as he had been informed he would--after pleading to

a cocaine offense under § 841(a), and counsel can hardly be characterized as

ineffective for securing the lowest applicable guideline sentence therefor (years

less than the statutory minimum specified in § 841(b)(1)(A)(iii)).

      A certificate of appealability is DENIED and the appeal is DISMISSED.

                                                      Entered for the Court


                                                      John C. Porfilio
                                                      Circuit Judge




3
       In contrast, 21 U.S.C. § 844, which specifically prohibits possession of
cocaine base, includes the drug form as an element of the offense. See United
States v. Hill, 60 F.3d 672, 676 (10th Cir. 1995). Indeed, for this reason, § 844 is
not a lesser included offense of § 841(a). See United States v. Lucien, 61 F.3d
366, 373 (5th Cir. 1995).

                                           -4-
