                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAR 5 2001
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 00-6311
v.                                               (W. District of Oklahoma)
                                                 (D.C. No. CIV-00-810-R)
DRUCILLA JEAN BAKER,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before HENRY, BRISCOE, 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)(2); 10th Cir. R. 34.1(G). 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       This order and judgment is not binding precedent, except under the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.
      This case is before the court on Drucilla Baker’s notice of appeal, which

this court construes as a request for a certificate of appealability (“COA”), 1 and

request to proceed on appeal in forma pauperis. 2 Baker needs a COA in order to

appeal the district court’s denial of her 28 U.S.C. § 2255 petition. See 28 U.S.C.

§ 2253(c)(1)(B). Because this court concludes that Baker has not “made a

substantial showing of the denial of a constitutional right,” see id. § 2253(c)(2),

we deny her requests for a COA and to proceed in forma pauperis and dismiss

the appeal.

      A jury convicted Baker of one count of conspiracy to possess with intent to

distribute and conspiracy to distribute methamphetamine, three counts of

possession with intent to distribute methamphetamine, and two separate counts

      1
       See Fed. R. App. P. 22(b)(2) (“If no express request for a [COA] is filed,
the notice of appeal constitutes a request addressed to the judges of the court of
appeals.”).
      2
        Baker filed her opening brief on appeal on November 27, 2000. On that
same date, she filed a separate brief styled as a “Supplemental Opening Brief,”
along with a motion for leave to file the supplemental brief. Upon review of the
proposed supplemental brief, it is apparent Baker thought, erroneously, that she
was obligated to ask permission to file the brief because it raises an issue that was
not raised before the district court,  i.e. , an assertion that she was tried and
sentenced in a manner at odds with the Supreme Court’s recent decision in
Apprendi v. New Jersey , 120 S. Ct. 2348 (2000). Taken together, Baker’s opening
brief and supplemental brief are well within the page limitations set out in Fed. R.
App. P. 32(a)(7). We, therefore, consider both briefs as a consolidated principal
brief and deny as moot the motion to file a supplemental brief. Of course, as set
forth more fully below, this court’s decision to treat Baker’s opening and
supplemental brief as one principal brief does not mean that the       Apprendi issue
set forth in the supplemental brief is properly before the court.

                                          -2-
each of distribution of methamphetamine, all in violation of 21 U.S.C. §§

841(a)(1) and 846. The district court sentenced Baker to a term of 210 months in

prison. This court affirmed Baker’s convictions and sentence on direct appeal.

See United States v. Baker, Nos. 97-6311, -6312, 1998 WL 808392 (10th Cir.

Nov. 20, 1998). Baker then filed the instant § 2255 petition raising the following

claims: (1) her trial and appellate counsel were ineffective in failing to challenge

on sufficiency grounds the district court’s finding that the conspiracy involved

d-methamphetamine; (2) trial counsel was ineffective in failing to object to the

admission of certain out-of-court statements adduced by the prosecution at trial;

(3) she was entitled to the application of the rule of lenity; (4) the denial of her

motion to sever her trial from the trial of her co-defendant violated her right to

due process. After considering each of Baker’s claims on the merits, the district

court denied Baker’s petition.

      On appeal, Baker reasserts her claim that trial and appellate counsel were

ineffective in failing to litigate the question of whether the methamphetamine at

issue was d- or l-methamphetamine. She also asserts for the first time on appeal

that her conviction and sentence are invalid under the principles recently

enunciated by the Supreme Court in Apprendi v. New Jersey, 120 S. Ct. 2348

(2000).




                                           -3-
      In resolving Baker’s ineffective assistance claim, the district court noted

that the record conclusively demonstrated, in contrast to the assertions of Baker in

her § 2255 petition, that the question of the amount and type of methamphetamine

involved in the crimes was litigated both at trial and on appeal. After a

sentencing hearing at which both sides presented evidence on the issue, the

district court specifically found that the substance was d-methamphetamine.

After an extensive discussion of the evidence presented before the district court,

this court upheld the district court’s finding against a sufficiency challenge. See

Baker, 1998 WL 808392, at *7. Accordingly, the district court concluded that

Baker could satisfy neither the performance nor prejudice prongs under Strickland

v. Washington, 466 U.S. 668 (1984).

      For the first time on appeal, Baker asserts that her conviction and sentence

fail to conform to the Supreme Court’s recent decision in Apprendi. Absent

extraordinary circumstances, this court will not consider issues raised for the first

time on appeal. See Smith v. Dep’t of Corrections, 50 F.3d 801, 814 n.22 (10th

Cir. 1995). Although Baker avers that she did not have time to move in the

district court to amend her § 2255 petition to include a claim based on Apprendi,

this court notes that Apprendi was issued by the Supreme Court almost two

months before the district court issued its order denying Baker’s § 2255 petition.

Even assuming, however, that this court were to disregard Baker’s waiver, and


                                          -4-
further assuming that Apprendi applies retroactively to cases on collateral appeal

under the principles set forth in Teague v. Lane, 489 U.S. 288 (1989), it is

absolutely clear that Baker is not entitled to any relief under Apprendi.

      In a pair of cases, this court recently held that the failure to charge a

specific drug quantity in the indictment and to have that quantity determined by

the jury as required by Apprendi is harmless when the ultimate sentence received

is no more than the twenty-year limit set out in § 841(b)(1)(C). See United States

v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000); United States v. Heckard, No. 99-

2186, 2001 WL 15532, at *12 (10th Cir. Jan. 8, 2001). Because Baker’s 210-

month sentence falls well below the 240-month limit set out in § 841(b)(1)(C),

Apprendi can provide her no relief. Heckard further forecloses Baker’s claim

based on Apprendi that sentencing enhancements under the Sentencing Guidelines

must be set forth in the indictment, submitted to a jury, and proven beyond a

reasonable doubt. In that regard, the Heckard court noted as follows:

             [T]he district court did not err in considering drug amount as
      an aggravating or mitigating factor in establishing Defendant’s
      offense level under the Sentencing Guidelines. Not all facts that
      affect a defendant’s sentence are essential elements, requiring
      prosecutorial proof and jury finding. The Apprendi court noted that
      judges may still “exercise discretion--taking into consideration
      various factors relating to both offense and offender--in imposing a
      judgment within the range prescribed by statute.” Apprendi, 120 S.
      Ct. at 2358. In fact, the Court specifically avoided disrupting the use
      or adequacy of the Sentencing Guidelines, noting that “[t]he
      Guidelines are, of course, not before the Court. We therefore express
      no view on the subject beyond what this Court has already held.” Id.

                                          -5-
      at 2366 n.21. Judges may still ascertain drug quantities by a
      preponderance of the evidence for the purpose of calculating offense
      levels under the Sentencing Guidelines, so long as they do not
      sentence above the statutory maximum for the jury-fixed crime. See
      United States v. Angle, 230 F.3d 113, 123 (4th Cir. 2000)
      (interpreting §§ 841 and 846 in light of Apprendi). Thus, while the
      district court’s drug quantity finding increased Defendant’s offense
      level and hence his sentence, it did not increase the maximum
      sentence he faced, and as such did not infract Apprendi.

Heckard, 2001 WL 15532, at *11.

      Baker is entitled to a COA only upon making “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. §(c)(2). Baker can make such a

showing by demonstrating that the issues she seeks to raise on appeal are

debatable among jurists, a court could resolve the issues differently, or the

questions presented deserve further proceedings. See Slack v. McDaniel, 529 U.S.

473, 483-84 (2000). This court has reviewed Baker’s request for a COA and

accompanying brief, the district court’s order, and the entire record on appeal.

That review demonstrates that the district court’s resolution of the petition is not

debatable, subject to an alternate resolution, or deserving of further proceedings.

See id. Accordingly, this court DENIES Baker’s request for a COA for

substantially those reasons set forth in the district court’s order




                                          -6-
dated August 18, 2000. Her request to proceed on appeal in forma pauperis is

likewise DENIED. This appeal is, therefore, DISMISSED. See 28 U.S.C. §

2253(c).

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




                                       -7-
