                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                October 9, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 15-3140
 v.                                         (D.C. Nos. 2:14-CV-02271-KHV and
                                                  2:10-CR-20129-KHV-7)
 WILLIE F. FORD,                                          (D. Kan.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, LUCERO, and McHUGH, Circuit Judges.


      Defendant-Appellant Willie F. Ford, a federal inmate appearing pro se,

seeks to appeal from the district court’s overruling of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. United States v. Ford, No.

14-2271, 2015 WL 2449574 (D. Kan. May 22, 2015). Because Mr. Ford has not

made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), we deny his request for a certificate of appealability (COA) and

dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).



                                   Background

      A jury convicted Mr. Ford of (1) conspiracy to distribute and possess with
intent to distribute more than 5 kilograms of cocaine and more than 280 grams of

cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)–(iii), and 846 (Count 1); (2)

conspiracy to maintain a residence for the purpose of distributing crack within

1,000 feet of a public secondary school, 21 U.S.C. §§ 856(a)(1), 860(a), and 846,

and 18 U.S.C. § 2 (Count 4); (3) distribution of crack within 1,000 feet of a

public secondary school, 21 U.S.C. §§ 841(a)(1), 860(a), and 18 U.S.C. § 2

(Count 5); and (4) use of a communication devise to facilitate a drug trafficking

offense, 21 U.S.C. § 843(b) and 18 U.S.C. § 2 (Count 12). The district court

sentenced Ford to 420 months imprisonment. This court affirmed. United States

v. Ford, 524 F. App’x 435 (10th Cir. 2013).

      Subsequently, Mr. Ford filed a § 2255 motion alleging ineffective

assistance of counsel based on counsel’s (1) failure to object to the indictment as

multiplicitous; (2) failure to object to the lack of specific drug type and quantity

in the indictment; 1 (3) failure to effectively object to the career offender

enhancement; and (4) failure to raise these issues on appeal. The district court

overruled Mr. Ford’s motion. Ford, 2015 WL 2449574, at *7.



                                     Discussion

      To obtain a COA, Mr. Ford must demonstrate that “reasonable jurists would


      1
         On appeal, Mr. Ford argues that counsel failed to object to the jury
instructions on Count 1.

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find the district court’s assessment of [his] constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484. To succeed on an ineffective assistance claim,

Mr. Ford must show that his counsel’s performance was below an objective

standard of reasonableness and that Mr. Ford was prejudiced by such deficiency.

Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

      Mr. Ford first asserts that his counsel provided ineffective assistance

because counsel failed to argue Count 1 and Count 4 of the indictment were

multiplicitous. The district court’s conclusion that counsel’s conduct was neither

deficient nor prejudicial is not reasonably debatable. Ford, 2015 WL 2449574, at

*4. We have previously held that convictions under § 846 and § 856 are not

multiplicitous. See United States v. McCullough, 457 F.3d 1150, 1162 (10th Cir.

2006) (explaining that “the plain language and legislative history of § 856

‘demonstrate that Congress unequivocally determined to create a distinct

offense––with its own, separate punishment––aimed specifically at criminalizing

the use of property for narcotics-related purposes.’” (alterations omitted) (quoting

United States v. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992))). No double

jeopardy problem arises from Mr. Ford’s convictions because the evidence

required to prove the conspiracy under Count 1 was not sufficient to establish the

conspiracy under Count 4, and vice versa. See Ford, 2015 WL 2449574, at *4 n.3

(outlining the different elements required for Counts 1 and 4); see also

Blockburger v. United States, 284 U.S. 299, 304 (1932).

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      Mr. Ford also states that counsel was ineffective for not objecting to, what

Mr. Ford characterizes as, the government’s failure to prove the conspiracy

alleged in Count 4 beyond a reasonable doubt. This assertion seems to be based

on Mr. Ford’s argument that Counts 1 and 4 are multiplicitous and founded upon

only one agreement. Because the district court’s rejection of Mr. Ford’s

multiplicity argument is not reasonably debatable, this argument is likewise

unavailing.

      Mr. Ford also contends on appeal that his attorney provided ineffective

assistance by failing to object to the jury instructions for Count 1. The Second

Superseding Indictment charged Mr. Ford with conspiracy to distribute and

possess more than five kilograms of cocaine and more than 280 grams of cocaine

base. The district court’s jury instructions on Count 1, however, only required

the jury to find that the conspiracy involved more than five kilograms of cocaine

or more than 280 grams of cocaine base. Mr. Ford alleges that this improperly

amended the charge in the indictment and that the failure to object constituted

ineffective assistance. While Mr. Ford may have argued in his motion that

counsel was ineffective for not proposing an instruction on drug type and

quantity, see Ford 2015 WL 2449574, at *5, Mr. Ford simply did not advance this

rationale such that the district court could address it; accordingly, this argument is

waived. See Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013);

BioDiversity Conservation Alliance v. Bureau of Land Mgmt., 608 F.3d 709, 714

                                        -4-
(10th Cir. 2010).

      Mr. Ford next argues that counsel provided ineffective assistance because

he did not effectively object to the court’s classification of Mr. Ford as a career

offender. Based upon United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), the

district court held that Mr. Ford’s previous conviction under Kansas law for

fleeing and eluding was a crime of violence, qualifying Mr. Ford as a career

offender. Though we later overruled Hill in United States v. Brooks, 751 F.3d

1204, 1213 (10th Cir. 2014), we do not think that the district court’s conclusion

that Mr. Ford cannot show deficient performance or prejudice (reasonably

probability of a different sentence) is reasonably debatable. Ford, 2015 WL

2449574, at *6 n.5. Counsel is not required to predict changes in the law.

      Finally, to the extent Mr. Ford is arguing that appellate counsel was

somehow ineffective, no such basis has been advanced and the district court’s

contrary conclusion is not reasonably debatable.

      We DENY a COA, DENY IFP status, and DISMISS the appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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