                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 29 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 98-5161
                                                    (D.C. No. 97-CV-402-E)
    JAMES MAHAN,                                          (N.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
      Defendant James Mahan seeks a certificate of appealability to appeal the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or

correct his sentence. Because he has not made a substantial showing of the denial

of a constitutional right as required by 28 U.S.C. § 2253(c)(2), we deny Mahan’s

request for a certificate of appealability (COA) and dismiss the appeal.

      Mahan was convicted in 1991 of one count of conspiracy to possess with

intent to distribute a controlled substance (cocaine base) in violation of 21 U.S.C.

§ 846 and sentenced to 360 months’ imprisonment. On direct appeal, he claimed

the trial court relied on incorrect information in the presentence report to

enhance his sentence under U.S.S.G. § 3C1.1 for obstruction of justice, under

U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during the commission of a

drug offense, and under U.S.S.G. § 3B1.1(c) for his role as an organizer-leader.

He also claimed there was insufficient evidence to support the conviction and that

his procedural due process rights were violated because the case was referred for

federal, rather than state, prosecution. We upheld his conviction and sentence in

all respects. See United States v. Mahan , No. 91-5054, 1992 WL 64888, **1-2

(10th Cir. March 31, 1992).

      In April of 1997, Mahan filed this motion to vacate sentence, claiming he

was denied effective assistance of counsel because counsel failed to investigate

the circumstances regarding the objective of the conspiracy. He argued that      his


                                           -2-
objective “‘was to have twice as much cocaine to distribute,’”         see R. Doc. 31 at

10 (quoting government’s appeal brief at 16), but that the objective of the other

participants was simply to commit a robbery to make some money.             See id. He

also contended that the enhanced punishment for cocaine base is unconstitutional

because powder cocaine and cocaine base (or crack) are the same.           See id. at

10-14. Lastly, he argued that he was entitled to an evidentiary hearing.         See id. at

14-15.

         The district court denied the § 2255 motion,      see R. Doc. 36 at 5, as well as

defendant’s subsequent application for a COA,           see R. Doc. 39 at 2. The court

evaluated the claimed ineffective assistance of counsel claim under the test set

forth in Strickland v. Washington , 466 U.S. 668, 687-97 (1984) (asking whether

attorney’s performance is reasonably effective and whether defendant’s defense

was prejudiced thereby) and determined that counsel’s failure to argue that there

was no meeting of the minds as to the true objective of the conspirators did not

fall below the required objective standard of reasonableness, particularly in view

of the defense strategy (denying any involvement in the alleged conspiracy) and

the testimony of one of the robbery participants that the purpose of the robbery

was so defendant “could get his cocaine and then maybe get some more for free”




                                             -3-
because the original drug shipment was supposedly taken by the police.    1
                                                                              Trial Tr.

p. 50. The court determined that defendant had failed to demonstrate prejudice by

the alleged error of defense counsel “to make the exact argument defendant

outlines.” See R. Doc. 36 at 2-4.

       The court further concluded that defendant’s argument that the sentence

enhancement for crack cocaine or cocaine base is unconstitutional was foreclosed

by this court’s decisions in   United States v. Thurmond , 7 F.3d 947, 953 (10th Cir.

1993) and United States v. Turner , 928 F.2d 956, 960 (10th Cir. 1991).       See R.

Doc. 36 at 4-5.

       On appeal defendant claims that the trial court failed to consider his

argument that cocaine base and cocaine powder are one controlled substance

under 21 U.S.C. § 812 in two different forms, but instead determined that 21

U.S.C. § 841 is not unconstitutional. He claims he was denied the effective

assistance of counsel because his attorney did not argue that “21 U.S.C. § 812

does not authorize an enhanced penalty for different forms of cocaine, i.e.,

‘powder cocaine’ and ‘cocaine base. . . .’” Appellant’s Br. at 11(d). As the

district court correctly held, this argument is answered by our decision in

Thurmond , 7 F.3d at 953 (“Finally, cocaine base is simply a different drug than


1
       The “police” were in fact the would-be robbers with fake uniforms and
identification, who were apprehended, with the cocaine, shortly after taking it
from the drug courier.

                                           -4-
cocaine power, with a different chemical composition [citing        United States v.

Easter , 981 F.2d 1549, 1558 (10th Cir. 1992)]; as a result, Congress can

justifiably provide for different penalties for each.”);    see also United States v.

Turner , 928 F.2d at 960 (“[T]he different penalties for cocaine base and cocaine

in its other forms do not violate due process.”). Moreover, the case on which

defendant relies, United States v. Davis , 864 F. Supp. 1303 (N.D. Ga. 1994), is

simply not the law of this circuit.    See United States v. Johnson , 934 F. Supp.

383, 386-87 (D. Kan. 1996) (recognizing that in        Turner , the Tenth Circuit “has

essentially rejected similar challenges to the one accepted by the court in

Davis .”). We have also upheld the validity of 21 U.S.C. § 812,       see United States

v. Barron , 594 F.2d 1345, 1352-53 (10th Cir. 1979), but in any event, § 812 is a

classification statute, not a penalty provision.

       Defendant also reargues his claim that he was denied the effective

assistance of counsel because “based on the testimonies of the witnesses at trial,

no reasonable minded jury could have found him guilty of conspiracy to distribute

drugs,” but rather only conspiracy to commit a robbery. Appellant’s Br. at 12(d).

This argument is plainly without merit. Defendant has failed to demonstrate that

his attorney’s performance fell below the objective standard of reasonableness

required under Strickland v. Washington , 466 U.S. at 694 or “that there is a

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


                                              -5-
the proceeding would have been different.”         See id. That a threshold purpose of

the cooperating witnesses may have been to rob the drug courier of the cocaine in

no way undermines the charge of conspiracy to possess with intent to distribute

the drug. Rather, the robbery was simply the manner and means employed by the

participants to effect the object and purpose of the conspiracy, which was to

obtain drugs for subsequent distribution.

      Counsel’s trial strategy in this case was predicated on Mahan’s claim that

his only involvement with the other participants was his presence on two

occasions when the robbery was planned and discussed. Contrary to Mahan’s

assertions, counsel did argue that there was no meeting of the minds between

Mahan and the cooperating witnesses; moreover, Mahan himself testified that he

never entered into any discussions regarding the robbery.

      We have reviewed the record in its entirety and are persuaded that

counsel’s performance was fully within the objective standard of reasonableness

required under Strickland .




                                             -6-
      Accordingly, because we conclude that Mahan has not made a substantial

showing of the denial of a constitutional right, we DENY his application for a

certificate of appealability and DISMISS his appeal.



                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




                                        -7-
