                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 25, 2014
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 12-5016
 v.
                                            (D.C. Nos. 4:08-CR-00197-JHP-2 and
                                                  4:10-CV-00273-JHP-PJC)
 MARCO A. HENDRICKSON,
                                                        (N.D. Okla.)
          Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.


      Defendant-Appellant Marco A. Hendrickson appeals from the district

court’s denial of his 28 U.S.C. § 2255 motion. We granted him a certificate of

appealability (“COA”) to consider whether his counsel provided ineffective

assistance by failing to object to the applicability of a ten-year statutory minimum

sentence for aiding and abetting his codefendant’s discharge of a firearm during a

crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii). Exercising jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253(a), we affirm.


      *
             This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
                                          I

      Mr. Hendrickson and Calvin Patillar robbed a Tulsa restaurant in 2008.

When they entered the restaurant, Mr. Patillar, armed with two firearms, fired two

to three rounds into the ceiling and ordered everyone to get on the floor. Mr.

Hendrickson then went behind the bar and took cash from the cash registers.

Fleeing cash-in-hand, the two climbed into a get-away vehicle driven by

Kimberly Roberts and sped away with the police in pursuit. In the ensuing high-

speed car chase, Mr. Hendrickson “bailed out” of the car and ran. Supp. R., Vol.

II, ¶ 7, at 5 (Presentence Investigation Report, revised Apr. 29, 2009) [hereinafter

“PSR”]. He was soon discovered hiding under an overturned swimming pool and

arrested. The cash and the two firearms were found nearby.

      Mr. Hendrickson and his two codefendants—Mr. Patillar and Ms.

Roberts—were charged in a three-count indictment. Count One charged all three

with Hobbs Act robbery under 18 U.S.C. § 1951 and with aiding and abetting

under 18 U.S.C. § 2. Count Two alleged that Mr. Patillar “knowingly discharged

and possessed a firearm in furtherance of a crime of violence” in violation of 18

U.S.C. § 924(c). R., Vol. I, at 15 (Indictment, filed Dec. 3, 2008). Finally, Count

Three charged Mr. Hendrickson with having “knowingly possessed a firearm in

furtherance of a crime of violence” in violation of 18 U.S.C. § 924(c). Id. at 16. 1


      1
             The government subsequently filed a two-count superseding
                                                                   (continued...)

                                          2
      Mr. Hendrickson eventually pleaded guilty without a plea agreement to

Counts One and Three of the indictment. At the change-of-plea hearing, he

described the robbery and admitted various facts necessary to establish the

elements of the charged offenses, including that he knew Mr. Patillar had the two

firearms when they entered the restaurant, that they entered intending to rob the

business, and that he was in possession of “the same gun that was involved in

th[e] robbery” at the time of his arrest. Supp. R., Vol. IV, at 22 (Tr. Plea Hr’g,

dated Feb. 3, 2009). Mr. Hendrickson’s counsel indicated that they had

“discussed the concept[s] of constructive possession and vicarious liability” and

that Mr. Hendrickson understood them fully. Id. at 24.

      The Presentence Investigation Report (“PSR”) subsequently prepared by the

United States Probation Office recommended a mandatory minimum sentence of

ten years (i.e., 120 months) for Count Three, pursuant to 18 U.S.C.

§ 924(c)(1)(A)(iii), because Mr. Hendrickson’s coconspirator had fired shots

during the robbery. 2 The PSR also calculated Mr. Hendrickson’s Count One

      1
        (...continued)
information against Mr. Hendrickson alleging, inter alia, that he “knowingly
discharged and possessed a firearm in furtherance of a crime of violence” in
violation of § 924(c). Supp. R., Vol. I, at 14 (Superseding Information, filed Dec.
31, 2008) (emphasis added). However, because Mr. Hendrickson declined to
waive indictment, the government dismissed the superseding information.
      2
             18 U.S.C. § 924(c)(1)(A) provides, in relevant part:

             [A]ny person who, during and in relation to any crime of
                                                               (continued...)

                                          3
range under the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)

to be 151 to 188 months. This rendered a total advisory Guidelines sentencing

range of 271 to 308 months. Mr. Hendrickson did not object to the PSR. 3

      On April 29, 2009, the district court sentenced Mr. Hendrickson to 271

months’ imprisonment, consisting of consecutive terms of 151 months for Count

One and 120 months for Count Three. Mr. Hendrickson did not raise any

objections at the sentencing hearing. On October 2, 2009, Mr. Hendrickson sent a

letter to the district court, claiming that he had intended to appeal from his

sentence, but that his counsel had failed to file an appeal on his behalf. The

district court treated the letter as a motion to file an appeal out of time. It denied

the motion, and we subsequently dismissed Mr. Hendrickson’s appeal from this


      2
          (...continued)
                violence or drug trafficking crime . . . for which the person may
                be prosecuted in a court of the United States, uses or carries a
                firearm, or who, in furtherance of any such crime, possesses a
                firearm, shall, in addition to the punishment provided for such
                crime of violence or drug trafficking crime—
                (i)   be sentenced to a term of imprisonment of not less than 5
                      years;
                (ii) if the firearm is brandished, be sentenced to a term of
                      imprisonment of not less than 7 years; and
                (iii) if the firearm is discharged, be sentenced to a term of
                      imprisonment of not less than 10 years.
      3
             At an evidentiary hearing on Mr. Hendrickson’s 28 U.S.C. § 2255
motion, his counsel explained that the initial PSR erroneously calculated a lower
minimum and a higher maximum Guidelines range. Mr. Hendrickson did not
object “because, by objecting, [he] would be increasing the minimum of the
range.” R., Vol. II, at 77 (Tr. Mot. Hr’g, dated Dec. 19, 2011).

                                            4
denial.

      Mr. Hendrickson, acting pro se, then filed the instant motion pursuant to 28

U.S.C. § 2255, arguing that he received ineffective assistance of counsel because

his counsel failed to file an appeal, and also because his counsel did not challenge

the career-offender enhancement or the ten-year mandatory minimum sentence.

The district court denied his petition as to all three ineffective-assistance-of-

counsel claims. We granted Mr. Hendrickson a COA to appeal his third

ineffective-assistance claim—viz., his claim that counsel was constitutionally

ineffective in failing to object to the district court’s imposition of a ten-year

mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A)(iii)—and appointed

him counsel to pursue this appeal.

                                          II

                                          A

      Mr. Hendrickson argued before the district court that his counsel should

have objected to the ten-year mandatory minimum sentence because the “district

court impermissibly exceeded the scope of the indictment” at sentencing. R., Vol.

I, at 172 (Def.’s Reply to Gov’t’s Resp. in Opp’n to Def.’s Am. § 2255 Mot., filed

Feb. 14, 2011). Specifically, Mr. Hendrickson alleged that “[b]y charging [him]

with only possessing and charging his co-defendant with possessing and

discharging, the grand jury narrowed the indictment” such that he had no “notice

that he could be held responsible for the discharge of a firearm.” Id. at 171. The

                                           5
district court rejected this claim, reasoning that “[a]lthough [Mr. Hendrickson]

did not discharge the firearm, the mandatory minimum is proper based on his co-

conspirator’s discharge of a firearm in furtherance of a crime of violence.” Id. at

228 (Op. & Order, filed Jan. 30, 2012). Thus, reasoned the court, because an

objection to the ten-year mandatory minimum sentence would not have been

sustained, the failure of Mr. Hendrickson’s counsel to object was not ineffective

assistance of counsel.

                                          B

                                          1

      “We review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Orange, 447 F.3d 792,

796 (10th Cir. 2006). Because an ineffective-assistance-of-counsel claim is a

mixed question of law and fact, our review is de novo. See United States v.

Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). To establish ineffective assistance

of counsel, Mr. Hendrickson bears the burden of demonstrating that “(1) defense

counsel’s performance was deficient, i.e., counsel’s ‘representation fell below an

objective standard of reasonableness’ as measured by ‘prevailing professional

norms,’ and (2) defendant was prejudiced thereby, i.e., ‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Id. (quoting Strickland v. Washington,

466 U.S. 668, 688, 694 (1984)). “We need not analyze both the performance and

                                          6
prejudice prongs of the Strickland test if [the] defendant ‘fails to make a

sufficient showing of one.’” United States v. Hollis, 552 F.3d 1191, 1194 (10th

Cir. 2009) (quoting Boltz v. Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005)).

      Accordingly, we resolve Mr. Hendrickson’s claim at the first prong:

because an objection to the ten-year mandatory minimum sentence received under

§ 924(c)(1)(A)(iii) would not have been sustained, we conclude that his counsel’s

performance was not deficient.

                                          2

      In assessing an attorney’s performance, we “reconstruct the circumstances

of counsel’s challenged conduct, and . . . evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. This principle is

particularly relevant where, as here, there has been an intervening change in the

law between Mr. Hendrickson’s sentencing and this appeal. At the time of

sentencing (and at the time of briefing), the Supreme Court had held that, “as a

matter of statutory interpretation, § 924(c)(1)(A) defines a single offense. The

statute regards brandishing and discharging as sentencing factors to be found by

the judge, not offense elements to be found by the jury.” Harris v. United States,

536 U.S. 545, 556 (2002), overruled by Alleyne v. United States, --- U.S. ----, 133

S. Ct. 2151 (2013). Recently, however, the Supreme Court overruled Harris,

holding that “any fact that increases the mandatory minimum”—including the

factors listed in § 924(c)(1)(A)—“is an ‘element’ that must be submitted to the

                                          7
jury.” Alleyne, 133 S. Ct. at 2155. 4

         Nevertheless, because “from counsel’s perspective at the time,” Harris

governed, Strickland, 466 U.S. at 689, we must assess his performance under the

pre-Alleyne § 924(c) framework—viz., we must treat the discharge of the firearm

as a sentencing factor rather than as an element of the offense, see Spears v.

Mullin, 343 F.3d 1215, 1250 (10th Cir. 2003) (“[C]ounsel is not ineffective for

failing to anticipate arguments or appellate issues that only blossomed after

defendant’s trial . . . .” (omission in original) (quoting Sherrill v. Hargett, 184

F.3d 1172, 1175 (10th Cir. 1999)) (internal quotation marks omitted)); see also

Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) (“The Sixth Amendment does

not require counsel to forecast changes or advances in the law . . . .”). With this

caveat in mind, we turn to Mr. Hendrickson’s ineffective-assistance-of-counsel

claim.

                                           C

         Mr. Hendrickson’s claim is predicated on his counsel’s failure to object

that the indictment provided insufficient notice that he could be sentenced for his

codefendant’s discharge of a firearm. In order to determine whether this


         4
             More specifically, the Supreme Court held that the district court
erred in subjecting the defendant to a seven-year mandatory minimum sentence
under § 924(c)(1)(A)(ii) for “brandishing” a firearm when “the finding of
brandishing” was made by the district court under a preponderance-of-the-
evidence standard and not by a jury beyond a reasonable doubt. Alleyne, 133 S.
Ct. at 2163.

                                           8
constituted deficient performance, “we look to the merits of the omitted issue. If

the omitted issue is without merit, counsel’s failure to raise it does not constitute

constitutionally ineffective assistance of counsel.” Hooks v. Ward, 184 F.3d

1206, 1221 (10th Cir. 1999) (citation omitted) (internal quotation marks omitted);

see also Neill v. Gibson, 278 F.3d 1044, 1058 (10th Cir. 2001) (holding that

counsel’s failure to object to a prosecutor’s allegedly improper statements was not

constitutionally deficient because the prosecutor’s conduct was not

inappropriate).

      Mr. Hendrickson relies primarily on the Sixth Circuit’s decision in United

States v. Thompson, 515 F.3d 556 (2008), abrogated by Alleyne, 133 S. Ct. at

2155, to demonstrate that the district court would have sustained an objection to

the ten-year mandatory minimum sentence. As a preliminary matter, we

underscore the obvious: Thompson is not a product of our court; therefore, it

would not have been a controlling fixture of the legal landscape surveyed by Mr.

Hendrickson’s counsel and the district court at the time of sentencing, and it has

no binding force in our assessment of the merits of Mr. Hendrickson’s

ineffective-assistance claim. Nonetheless, upon assessing Thompson, we

determine that its reasoning is not persuasive. And, ultimately, we conclude that

Mr. Hendrickson was not entitled under well-established law to the kind of notice

that he effectively argues for here—that is, explicit notice in the indictment that

he could be held responsible as an aider and abettor at sentencing for his

                                           9
codefendant’s (i.e., Mr. Patillar’s) discharge of the firearm. Thus, an objection to

Mr. Hendrickson’s sentence on notice grounds based on the omission of this

information would have been properly overruled; consequently, Mr. Hendrickson

was not provided ineffective assistance.

                                           1

      The facts in Thompson are admittedly similar to those before us. In that

case, Mr. Thompson and his codefendant, Mr. Jones, were both charged in

separate counts of an indictment with violating § 924(c). See Thompson, 515

F.3d at 565–66. Count Three charged Mr. Jones with having “knowingly used,

carried, and discharged a firearm, to-wit: a Glock, . . . during and in relation to a

drug trafficking crime,” while Count Four alleged that Mr. Thompson “knowingly

used and carried a firearm, to-wit: a Ruger, . . . during and in relation to a drug

trafficking crime.” Id. (emphasis added). Although the Ruger Mr. Thompson

carried was not discharged during the course of the crime, “the district court

sentenced Thompson to the 10-year mandatory minimum under § 924(c)(1)(A)(iii)

based on evidence that Jones had discharged the Glock.” Id. at 566 (emphasis

added).

      The Sixth Circuit reversed Mr. Thompson’s conviction. While the court

“recognize[d] that, as a general matter, Thompson may indeed be held liable for

Jones’ conduct,” it characterized the issue presented as “whether, under the

specific language of § 924(c) and the indictment, the district court appropriately

                                           10
sentenced Thompson to the 10-year mandatory minimum.” Id. (emphasis added).

The Sixth Circuit found “two fundamental problems with the district court’s

sentence.” Id. First, as stated in the indictment, “the grand jury charged

Thompson with using and carrying ‘a Ruger’ in connection with drug trafficking,

and aiding and abetting the same under 18 U.S.C. § 2,” while charging Jones with

using, carrying, and discharging a Glock. Id. The court reasoned that “[u]nder a

plain reading of the indictment, the Ruger, being ‘a firearm’ for purposes of

§ 924(c)(1)(A), would be the ‘the firearm’ for purposes of Thompson’s sentence.”

Id.

      The second problem the court identified was that “the indictment charged

Thompson . . . with respect to specific criminal activity—‘us[ing] and carr[ying]’

a firearm.” Id. (alterations in original). In contrast, the indictment “charged his

co-defendant with ‘us[ing], carr[ying], and discharg[ing]’ a firearm.” Id.

(alterations in original) (emphasis added). Thus, the Sixth Circuit concluded, “the

indictment not only failed to provide Thompson notice that the Glock could serve

as ‘the firearm’ for purposes of the § 924(c)(1)(A) enhancements, it also failed to

put him on notice that he could be held responsible for the discharge of a

firearm.” Id.

      The court noted that these issues could have been avoided if “the grand jury

expressly incorporated Count 3 into Count 4” or if the indictment had “dispensed

with listing any of the sentencing factors of 18 U.S.C. § 924(c)(1)(A)(i)–(iii)” and

                                         11
“omitted any references to the particular make and model of firearm or the term

‘discharge’ in Count 3.” Id. at 567. Instead of pursuing either of these

alternatives, “by charging Jones specifically with using, carrying and discharging

a Glock and charging Thompson only with using and carrying a Ruger,” the court

concluded that “the grand jury narrowed the indictment vis-à-vis Thompson in a

material way” and thus failed to “give Thompson fair notice that he could be held

responsible for discharge of the Glock.” Id.

      The government argues that Thompson is distinguishable because the Sixth

Circuit’s decision turned on the fact that the indictment charged Mr. Jones and

Mr. Thompson based on two different guns—an issue not presented in Mr.

Hendrickson’s case. 5 This argument, however, is not entirely persuasive and does

not provide a means to fully distinguish Thompson. The specification of two

different firearms was only one of the “two fundamental problems” the court

identified. Thompson, 515 F.3d at 566. The other was the difference in the

charging language in each of the counts—the indictment charged Mr. Jones with

using, carrying, and discharging a firearm, while only charging Mr. Thompson

with using and carrying a firearm. See id. at 566 n.2 (“[T]he indictment here not

only charged Thompson and his co-defendant in relation to different firearms, but,



      5
            Neither count of the indictment at issue here specified a firearm, and
indeed, Mr. Hendrickson admitted to possession of the same gun that was
discharged in the course of the robbery.

                                         12
importantly, different criminal activity.” (emphasis added)). The indictment in

this case presents the same distinction: Count Two alleged that Mr. Patillar

“discharged and possessed a firearm,” R., Vol. I, at 15, but Count Three charged

Mr. Hendrickson with only having “possessed a firearm,” id. at 16.

                                          2

      Because the facts here are parallel in the relevant respect to those

in Thompson, we must determine whether to follow the Sixth Circuit’s lead in

finding that, pre-Alleyne, charging one defendant with possessing a firearm and a

second defendant with discharging a firearm would “fail[] to put [the former] on

notice that he could be held responsible for the discharge of a firearm.”

Thompson, 515 F.3d at 566.

      The government urges us not to follow the Sixth Circuit, claiming that

Thompson was wrongly decided—and consequently that the indictment

sufficiently put Mr. Hendrickson on notice. And we agree. As explicated below,

we reason that, although the Sixth Amendment does entitle a defendant, like Mr.

Hendrickson, to notice in an indictment of the elements of the crime with which

he is charged, it does not guarantee him the right to notice of facts or theories of

liability that merely support sentencing enhancements. Discharging a firearm was

precisely such a sentence-enhancing fact pre-Alleyne, and aider-and-abettor

principles constitute just such a liability theory. Therefore, Mr. Hendrickson was

not constitutionally entitled to notice that his sentence could be enhanced based

                                         13
upon his aiding and abetting his codefendant, Mr. Patillar, in the discharge of a

firearm.

      It is well-established that sentencing factors need not be charged in an

indictment and need only be proved to the sentencing judge by a preponderance of

the evidence. See Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998)

(“An indictment must set forth each element of the crime that it charges. But it

need not set forth factors relevant only to the sentencing of an offender found

guilty of the charged crime.” (citation omitted)). Prior to Alleyne, controlling

precedent from the Supreme Court and our court held that “discharging” a firearm

under § 924(c)(1)(A)(iii) was a sentencing factor, and not an element of the

offense, and thus it did not need to be included in an indictment. See Harris, 536

U.S. at 556 (holding that “discharging [i]s [a] sentencing factor[] to be found by

the judge, not [an] offense element[]”); id. at 568 (concluding that discharging

“need not be alleged in the indictment, submitted to the jury, or proved beyond a

reasonable doubt”); United States v. Rosemond, 695 F.3d 1151, 1153 (10th Cir.

2012) (“[B]randishing and discharging a firearm are sentencing enhancements

that the Government must prove to the sentencing court by a preponderance of the

evidence.”), vacated and remanded on other grounds, --- U.S. ----, 134 S. Ct.

1240 (2014).

      Importantly, we also have held that a defendant can be held liable as an

aider and abettor at sentencing for his codefendant’s use of a firearm. See United

                                         14
States v. Bowen, 527 F.3d 1065, 1075 (10th Cir. 2008) (holding that a defendant

was eligible, as an aider and abettor, “for a sentencing enhancement predicated on

[his co-defendant’s] ‘brandishing’ of [a] weapon”). Aiding and abetting need not

be charged in an indictment in order to be utilized later in the proceedings

(including during sentencing) because it “is not an independent crime under 18

U.S.C. § 2; it simply abolishes the common-law distinction between principal and

accessory.” United States v. Cooper, 375 F.3d 1041, 1049 (10th Cir. 2004)

(quoting United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1997)) (internal

quotation marks omitted) (holding that a defendant may be convicted as an aider

and abettor even if this theory is not charged in the indictment); see United States

v. Thomas, 749 F.3d 1302, 1316–17 (10th Cir. 2014) (concluding that a district

court could sentence the defendant based on a greater quantity of drugs than that

for which he personally was convicted even though he “was not charged with

conspiracy or aiding and abetting” the overall drug operation). Indeed, U.S.S.G.

§ 1B1.3(a)(1)(A) explicitly requires the sentencing court to consider, in

calculating a defendant’s base offense level and other adjustments, “all acts and

omissions committed, aided, [and] abetted . . . by the defendant.”

      In short, while the Sixth Amendment “guarantees [Mr. Hendrickson] notice

of the charges against him,” United States v. Cruz-Rodriguez, 570 F.3d 1179,

1182 (10th Cir. 2009) (quoting United States v. Van Tieu, 279 F.3d 917, 921 (10th

Cir. 2002)) (internal quotation marks omitted), this notice requirement does not

                                         15
mandate that facts or theories of liability that support sentencing

enhancements—including, respectively, discharging a weapon or aiding and

abetting—be stated in the indictment. As such, at the time of Mr. Hendrickson’s

sentencing, the district court would have acted properly in concluding that the

government’s failure to charge Mr. Hendrickson with discharging a firearm, or

with aiding and abetting his codefendant’s discharge of a firearm, did not

preclude the court from enhancing Mr. Hendrickson’s sentence—by imposing

upon him a ten-year mandatory minimum under § 924(c)(1)(A)(iii)—based on his

codefendant’s discharge of a firearm.

                                          3

      Although the Thompson court seemed to give obligatory recognition to the

well-established distinction between elements of an offense and sentencing

factors, the substance of its holding is not consonant with the foregoing

understanding of the actual notice constraints that the Sixth Amendment imposes;

therefore, Thompson is unpersuasive. The authorities that Thompson relied

upon—United States v. Leichtnam, 948 F.2d 370, 379–81 (7th Cir. 1991), and our

opinion in United States v. Bishop, 469 F.3d 896, 901–04 (10th Cir. 2006),

overruled in part on other grounds by Gall v. United States, 552 U.S. 38

(2007)—further highlight the dubious nature of its conclusion.

      In both of these cases, the court held that an indictment was constructively

amended because the indictment charged the defendant with possessing a specific

                                          16
firearm, while the evidence at trial and the jury instructions permitted conviction

for possession of different firearms. See Bishop, 469 F.3d at 901–04; Leichtnam,

948 F.2d at 379–81. However, constructive-amendment claims focus on whether

the defendant was convicted of a crime that the indictment did not charge, and,

because the government charged a specific firearm in the indictment, it was

obliged to establish that fact in order to convict the defendant. See Bishop, 469

F.3d at 902 (“If an indictment charges particulars, the jury instructions and

evidence introduced at trial must comport with those particulars.”); see also

United States v. Rahseparian, 231 F.3d 1257, 1265 (10th Cir. 2000) (“[B]ecause

the indictment in this case specifically charged that the unlawful activity

underlying the money laundering count was mail fraud, the government was

obligated to prove not only that [the defendant] knew the money was obtained

illegally, but that it was obtained by mail fraud.”). Yet, these claims are not

concerned with whether a defendant can be held accountable at sentencing for

conduct not included in an indictment count—the matter apposite here. In fact,

defendants are regularly held accountable at sentencing for conduct not charged

by the indictment. See Thomas, 749 F.3d at 1316 (“[T]he district court could

sentence Mr. Thomas based on uncharged conduct.”); United States v. Rodriguez-

Felix, 450 F.3d 1117, 1131 (10th Cir. 2006) (“In the aftermath of Booker, we

have routinely permitted a district court to enhance a defendant’s sentence using

uncharged conduct proven to the court by a preponderance of the evidence.”).

                                          17
      As such, constructive-amendment cases appear to have little relevance to

the issue in Thompson and, more importantly, to this appeal. Mr. Hendrickson

“pleaded guilty to the § 924(c) charge and, consequently, whether he was

convicted of an offense other than that charged in the indictment is not at issue.”

Thompson, 515 F.3d at 566 n.2. 6 We therefore conclude that Thompson does not

chart a course that we should follow.

                                         4

      To recap, at the time of Mr. Hendrickson’s sentencing, controlling

precedent did not require that either the discharge of a weapon or aiding and

abetting be explicitly alleged in an indictment count in order to impose sentencing

enhancements based on such factors. Therefore, we conclude that Mr.

Hendrickson was provided constitutionally sufficient notice of the conduct for

which he could be held liable. Had Mr. Hendrickson’s counsel objected to his

ten-year mandatory minimum sentence on the grounds that it “exceeded the scope

of the indictment,” Thompson, 515 F.3d at 567, the objection would have been

overruled. His counsel thus did not render ineffective assistance by failing to

raise an objection that was destined to fail.




      6
            For this reason, Mr. Hendrickson’s argument that “[t]he district court
impermissibly constructively amended the indictment . . . when sentencing him to
a ten-year minimum term,” Aplt. Opening Br. at 30, is misplaced.

                                          18
                                   III

     We accordingly AFFIRM the district court’s order denying Mr.

Hendrickson’s § 2255 motion.



                                         Entered for the Court




                                         JEROME A. HOLMES
                                         Circuit Judge




                                    19
