                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 02-3183
                               ________________

Charles Lamont Lemon,                    *
Sued as Charles L. Lemon,                *
                                         *
            Appellant,                   *      Appeal from the United States
                                         *      District Court for the
      v.                                 *      District of Minnesota.
                                         *
United States of America,                *         [PUBLISHED]
                                         *
            Appellee.                    *
                                         *


                               ________________

                               Submitted: March 14, 2003
                                   Filed: July 15, 2003
                               ________________

Before HANSEN, Chief Judge,1 JOHN R. GIBSON and LOKEN, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.

      We affirmed Charles Lemon's convictions and 20-year sentence for possession
of cocaine base with intent to distribute and possession of ammunition by a felon in


      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
U.S. v. Lemon, 239 F.3d 968 (8th Cir. 2001). Having received a certificate of
appealability from the district court2, Lemon now appeals the district court's denial
of his application for postconviction relief pursuant to 28 U.S.C. § 2255 (2000).
Lemon argues that the district court erred in finding that his trial and sentencing
counsel provided effective assistance. We affirm the judgment of the district court.

       In order to establish ineffective assistance of counsel, Lemon must establish
that his "counsel's representation fell below an objective standard of reasonableness"
and that "but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
During trial, Lemon's counsel stipulated that the controlled substance found in the
apartment with Lemon was crack cocaine and that Lemon had been convicted of three
previous felonies. Lemon's sentencing counsel did not challenge these stipulations.
The statutory minimum sentence for possessing 50 or more grams of cocaine base
with intent to distribute is 20 years for a defendant who, like Lemon, has a prior drug
felony conviction. See 21 U.S.C. § 841(b)(1)(A) (1994). Under the Sentencing
Guidelines, cocaine base is defined as "crack," and greater punishment applies to
cocaine base than to cocaine. See U.S. Sentencing Guidelines Manual § 2D1.1(c)
n.(D) (1998). Lemon now argues that because the laboratory reports indicated that
the substance was merely "cocaine base," his counsel rendered ineffective assistance
by failing to hold the government to its burden of proving that he specifically
possessed crack. We agree with the district court that counsel's actions were not
unreasonable and did not result in prejudice to Lemon.

       Lemon's counsel made the decision to stipulate as part of a reasonable trial
strategy in which counsel sought to disprove the element of possession rather than the
drug type. The stipulation did not result in prejudice to Lemon because the laboratory


      2
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
                                          -2-
report explicitly states that Lemon possessed "cocaine base," which is all that is
necessary for the 240-month statutory minimum sentence that Lemon received
pursuant to 21 U.S.C. § 841(b)(1)(A).

      Citing the dissent in United States v. Stoneking, 60 F.3d 399, 409 n.15 (8th Cir.
1995) (en banc), cert. denied, 516 U.S. 1119 (1996), Lemon urges us to adopt the
analysis utilized in United States v. Munos-Realpe, 21 F.3d 375, 377-78 (11th Cir.
1994) (concluding that cocaine base other than crack should be sentenced as cocaine
for purposes of mandatory minimum statute). We reject Lemon's reliance on a
dissenting opinion in the face of binding en banc Eighth Circuit precedent. The
majority in Stoneking held that where a conflict exists between the sentencing
guidelines and a statute regarding the identification and measurement of a controlled
substance, the statute controls. See 60 F.3d at 402; see also United States v. Wilson,
103 F.3d 1402, 1407 (8th Cir. 1997) (finding that a chemist's testimony identifying
the substance as cocaine base without referring to "crack" was sufficient to support
the defendant's sentence under the statutory minimum for cocaine base and the
Guideline for crack).

       The prior decisions of this court control. Accordingly, we affirm the district
court's judgment denying postconviction relief.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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