                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 18 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 96-7093
                                                    (D.C. No. 95-CV-157-S)
    OTTO PACE,                                            (E.D. Okla.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.




         After examining the briefs and 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.




*
      This order and judgment is not binding precedent, except under the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.
      Defendant appeals from the district court’s denial of his motion, pursuant

to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. 1 Defendant was

convicted of conspiracy in violation of 21 U.S.C. § 846 with two objects: to

possess with intent to distribute methamphetamine/amphetamine and/or

conspiracy to attempt to manufacture methamphetamine; and possession with

intent to distribute methamphetamine/amphetamine, in violation of 21 U.S.C.

§ 841(a)(1). Defendant was also convicted of violating 18 U.S.C. § 1952. This

court affirmed the convictions on appeal, but remanded for resentencing. After

resentencing, defendant again appealed, and this court affirmed.

      In this § 2255 motion, defendant raises several instances in which he

alleges that he received ineffective assistance of counsel. We review defendant’s

claims of ineffective assistance of counsel in this § 2255 motion de novo, see

United States v. Cox, 83 F.3d 336, 340 (10th Cir. 1996), and we affirm.

      The sentencing court applied United States Sentencing Guideline

(U.S.S.G.) § 2D1.1 in sentencing defendant. Defendant argues that the court



1
       Defendant filed his original motion pursuant to § 2255 on April 4, 1995,
prior to the effective date of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214, April 24, 1996. In Lindh v. Murphy,
117 S. Ct. 2059 (1997), the Supreme Court recently held that the Act’s
amendments to Chapter 153 of Title 28, including the amendments to 28 U.S.C.
§§ 2253-2255, did not apply to noncapital cases pending on the effective date.
Therefore, defendant’s application for a certificate of appealability pursuant to
the amended § 2253 is dismissed.

                                         -2-
should have applied U.S.S.G. § 2D1.11, and that his attorney’s failure to make

this argument rendered his assistance ineffective. 2 To prevail on a claim that his

attorney was ineffective for failing to raise these issues, defendant must show

both that his attorney’s performance fell below an objective standard of

reasonableness and that the deficient performance was prejudicial. See United

States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). Defendant cannot show either

deficient performance or prejudice because the trial court applied the correct

guideline in sentencing defendant. Section 2D1.11 applies when a defendant is

charged with violation of 21 U.S.C. § 841(d); the indictment delivered against

defendant did not charge him under that section. Defendant was indicted for

violation of 21 U.S.C. § 841(a), and the guideline appropriate to that section is

§ 2D1.1, the very guideline applied by the trial court. See United States v. Myers,

993 F.2d 713, 716 (9th Cir. 1993). Defendant’s attorney was not deficient in

failing to argue application of U.S.S.G. § 2D1.11.

      Next, defendant complains that his counsel was ineffective for failing to

request a jury charge for what he terms “the lesser included offense” of



2
       The government argues that this, and defendant’s other arguments in this
§ 2255 appeal, are procedurally barred because defendant did not raise them on
direct appeal. The government fails, however, to acknowledge that defendant’s
allegations of error are couched in terms of ineffective assistance of counsel,
which this court has held is preferably raised in collateral proceedings. See
United States v. Galloway, 56 F.3d 1239, 1242-43 (10th Cir. 1995).

                                         -3-
possession of listed chemicals with intent to manufacture a controlled substance,

in violation of 21 U.S.C. § 841(d). Defendant cites no authority for his theory

that § 841(d) is a lesser included offense of § 841(a). It is clear that § 841(d)

requires proof of an element that § 841(a) does not: possession of a listed

chemical. See Schmuck v. United States, 489 U.S. 705, 716 (1989) (holding that

where lesser offense requires an element not required for greater offense, no

lesser included offense instruction is required). Defendant was indicted for

conspiracy to violate § 841(a)(1), and the jury charge accurately reflects the law

in that regard. Defendant’s attorney was not constitutionally ineffective for

failing to object to the jury charge.

      Defendant also argues that his attorney was ineffective for failing to object

to the government’s lack of proof regarding the distinction between

d-methamphetamine and l-methamphetamine. On direct appeal, this court held

that the case would be remanded for resentencing using offense levels relevant to

amphetamine, which has a lower base offense level than methamphetamine.

Because defendant was not sentenced using the higher offense levels relating to

methamphetamine, there can be no prejudice resulting from his attorney’s failure

to argue that the government failed to prove possession and attempt to

manufacture d-methamphetamine, as opposed to l-methamphetamine.




                                          -4-
      Defendant’s counsel was not ineffective for failing to object to the jury

charge on conspiracy or the verdict forms. The conspiracy charge and the relating

charges with regard to the objects of the conspiracy were adequately set forth.

We find neither deficient performance nor prejudice in this regard.

      Finally, defendant argues that he was denied due process because the court

received perjured testimony at trial. We do not reach this argument because

defendant shows neither cause for failing to present this issue on direct appeal,

nor prejudice resulting from the error. See Cook, 45 F.3d at 392. 3

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    James E. Barrett
                                                    Senior Circuit Judge




3
       We note that defendant did raise an issue on direct appeal regarding the
credibility of Jarvis Wells, in which this court found no merit. It appears,
however, that the credibility issue raised in this § 2255 appeal involves different
specifics and individuals than the issue addressed on direct appeal.

                                         -5-
