                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            March 31, 2008
                             No. 07-12777                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket Nos. 07-20035-CV-UUB
                           03-20593 CR-UUB

HUGH JAMAL PAYNE,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (March 31, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      A Southern District of Florida jury convicted petitioner of three counts of a

five-count indictment: Count Two, conspiring in violation of the Hobbes Act, 18

U.S.C. § 1951(a), to acquire cocaine via a robbery of persons engaged in narcotics

trafficking; Count Three, conspiring to use a firearm in a drug trafficking crime, in

violation of 18 U.S.C. § 924(o); and Count Five, using and carrying a firearm in a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The district court

sentenced petitioner to consecutive 46-months’ prison terms on Counts Two and

Three, and a consecutive 60 months’ prison term on Count Five.

      On August 29, 2005, we affirmed petitioner’s convictions and sentences in

United States v. Payne, No. 04-15239. Petitioner thereafter moved the district

court pursuant to 28 U.S.C. § 2255 to vacate his convictions and sentences. The

district court denied relief, and we issued a certificate of appealability on one issue:

      Whether the district court erred in denying [petitioner’s] claim that counsel
      was ineffective for failing to argue at sentencing that U.S.S.G. § 2X1.1
      applied to [his] two conspiracy convictions.

      A convicted defendant claiming ineffective assistance of counsel must

establish both prongs of the two-prong standard established by Strickland v.

Washington: professional error on counsel’s part and prejudice to the outcome of

the criminal proceeding. 466 U.S. 668, 687, 697, 104 S.Ct. 2052, 2064, 2069

(1984). As for the first prong, “the defendant must show that counsel's



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representation fell below an objective standard of reasonableness.” Id. at 687-88,

104 S.Ct. at 2064. In assessing counsel’s representation, we must be mindful that

“counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. at

690, 104 S.Ct. at 2066. The second prong requires the defendant to establish a

“reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068.

       To calculate a defendant’s base offense level for offenses involving a

conspiracy, the Sentencing Guidelines instruct the district court to refer to the

guideline provision for the substantive offense, as provided in the statutory index,

along with U.S.S.G. § 2X1.1. See U.S.S.G. § 1B1.2(a).1 When a conspiracy is not

covered by a specific guideline provision, § 2X1.1(a) calls for the application of

“[t]he base offense level for the substantive offense, plus any adjustments from

such guideline for any offense conduct that can be established with reasonable

certainty.” U.S.S.G. § 2X1.1(a). Moreover, § 2X1.1(b)(2) also provides for a

three-level downward adjustment of the offense level for a conspiracy not covered

by a specific guideline section:

       [U]nless the defendant or a co-conspirator completed all the acts the


       1
          All citations are to the 2003 version of the Guidelines, which were in effect at the time
of petitioner’s sentencing.

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      conspirators believed necessary on their part for the successful
      completion of the substantive offense or the circumstances
      demonstrate that the conspirators were about to complete all such acts
      but for apprehension or interruption by some similar event beyond
      their control.

U.S.S.G. 2X1.1(b)(2). However, § 2X1.1(c)(1) instructs that “when a . . .

conspiracy is expressly covered by another offense guideline section, apply that

guideline section.” U.S.S.G. § 2X1.1(c)(1). The application notes list the

“[o]ffense guidelines that expressly cover conspiracies . . . .” Id., cmt. (n.1).

      Here, the district court erroneously found that § 2X1.1 did not apply to

petitioner’s convictions on Counts Two and Three. The record clearly

demonstrates that assuming counsel was aware of the error, his failure to argue for

a downward adjustment under § 2X1.1(b)(2) did not constitute ineffective

assistance. But for their arrest, petitioner and his codefendants “were about to

complete" all the acts they "believed necessary on their part for the successful

completion of the [robbery] . . . ." U.S.S.G. § 2X1.1(b)(2). Given this fact, the

three-level downward adjustment was not available.

      In sum, not only did petitioner fail to demonstrate that counsel’s assistance

was ineffective, he failed to establish that Strickland prejudice – a reasonable

probability that he would have received lesser sentences on Counts Two and Three.

      AFFIRMED.



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