                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        September 7, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 04-2172
                                              (D.C. Nos. CIV-03-622 JC/KBM and
    CORY PARKS, also known as Cory                     CR-01-1139 JC)
    McGuinn-Parks,                                         (D. N.M.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before O’BRIEN , HOLLOWAY , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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.
        Cory Parks, proceeding pro se, appeals the district court’s denial of his

motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We

have jurisdiction under 28 U.S.C. § 2253, and we affirm.

                                            I

        In August 2001, Mr. Parks was indicted for one count of conspiracy to

distribute less than five grams of a mixture and substance containing cocaine base

in violation of 21 U.S.C. § 846 and one count of distributing less than five grams

of a mixture and substance containing cocaine base in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(C). Relying on his logbook, a Drug Enforcement

Administration (DEA) agent testified before the grand jury that the narcotics

weighed 1.7 grams when seized. Referring to a DEA chemist’s report, he then

testified that when the substance seized was sent for laboratory analysis, it “tested

positive for cocaine base with a net weight of 2.0 grams.” R. Doc. 1, Attach. B

at 3.

        Mr. Parks entered into plea negotiations with the government. While the

negotiations were pending, his counsel filed a motion for the independent

examination and weighing of the cocaine base. The motion argued that the exact

weight of cocaine base was extremely important because the sentencing range was

greater for quantities of 2.0 grams and higher. The motion suggested that




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weighing of small amounts was subject to error and that the chemist may have

rounded to the nearest tenth of a gram to arrive at 2.0 grams.

      The plea negotiations were unsuccessful, so Mr. Parks hired new counsel

and went to trial on the distribution count after the government voluntarily

dismissed the conspiracy count. At trial, the DEA chemist testified that the

cocaine base weighed 2.0 grams at the time of testing, and the DEA agent

testified that it weighed 2.3 grams at the time of the seizure. The agent explained

his grand jury testimony by stating that he probably looked at the wrong entry in

his logbook, as his review of his logbook immediately prior to testifying at trial

indicated that the weight of the drugs in Mr. Parks’s case was 2.3 grams. Counsel

cross-examined the chemist about the weighing process but did not pursue the

motion to reweigh, and the court never ruled on the motion. The jury convicted

Mr. Parks of distributing less than five grams of cocaine base. At sentencing, the

court stated that the quantity involved was 2.0 grams, resulting in a guidelines

range of 41 to 51 months in prison. Had the quantity been less than 2.0 grams,

the lower offense level would have resulted in a range of 33 to 41 months.

Mr. Parks received a sentence of 41 months’ imprisonment. He did not appeal.

      On May 23, 2003, Mr. Parks timely filed his § 2255 motion contending,

among other arguments, that his trial counsel was ineffective for not pursuing the

motion to reweigh. Addressing only that claim, the magistrate judge


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recommended that the district court grant the § 2255 motion. She stated that,

given the discrepancies in the testimony about the weight of the cocaine base and

the lack of any evidence that counsel knew of the motion or had a strategic reason

for not pursuing it, she could not conclude that it was reasonable for counsel not

to pursue the motion. She also stated that, given the increase in the sentencing

range, she could not conclude that Mr. Parks suffered no prejudice from counsel’s

actions.

       The district judge disagreed. He held that the discrepancies regarding the

weight of the cocaine base were “plainly and conclusively clarified” during the

proceedings and that Mr. Parks had not suffered any prejudice. R. Doc. 12 at 2.

Thus, he denied the motion. Mr. Parks appealed and requested a certificate of

appealability (COA), which the district court denied. A judge of this court then

granted a COA as to the claim of ineffectiveness for not pursuing the motion to

reweigh. The government has briefed the issue, and the appeal is ready for

decision.

                                             II

       “When reviewing a district court’s denial of a § 2255 petition, we review

questions of law de novo and questions of fact for clear error.”   United States v.

Harms , 371 F.3d 1208, 1210 (10th Cir. 2004).




                                            -4-
       Criminal defendants have a constitutional right to counsel.           Strickland v.

Washington , 466 U.S. 668, 685 (1984). To ensure that defense counsel “plays the

role necessary to ensure that the trial is fair . . ., the Court has recognized that the

right to counsel is the right to the effective assistance of counsel.”        Id. at 685-86

(quotation omitted). “The benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just

result.” Id. at 686. To establish ineffective assistance, a petitioner must show

(1) “that counsel’s performance was deficient,” and (2) “that the deficient

performance prejudiced the defense.”        Id. at 687. “Prejudice” is established by

showing “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.”           Id. at 694. We need not

address the first Strickland prong if the defendant’s showing is insufficient on the

second prong. See id. at 697.

       In this case, the district court found that Mr. Parks had not established

prejudice from counsel’s failure to pursue the motion to reweigh. We agree.

For sentencing purposes, the relevant determination is the weight of the drugs at

the time of the offense, not at the time of trial or sentencing.         See United States v.

Klinginsmith , 25 F.3d 1507, 1511 (10th Cir. 1994);        see also Kinnard v. United

States , 313 F.3d 933, 935-36 (6th Cir. 2002). The evidence in the record tends to


                                              -5-
show that the cocaine base weighed at least 2.0 grams as of the date of the

offense. The only evidence to the contrary was the DEA agent’s testimony before

the grand jury. The agent, however, explained the discrepancies in his grand jury

testimony and his trial testimony to the district court’s satisfaction. Where there

is no reasonable dispute about the quantity of narcotics involved, reweighing is

not required. See United States v. Garcia , 900 F.2d 571, 574 (2d Cir. 1990). In

similar circumstances, the Sixth Circuit has held that failure to seek reweighing is

not ineffective assistance.   See Kinnard , 313 F.3d at 935-36. To the extent that

there may have been doubts about the chemist’s weighing process, counsel did

cross-examine the chemist at trial.

                                           III

       We have reviewed the other issues Mr. Parks raises on appeal and have

determined that none are worthy of granting a COA. The judgment of the district

court is AFFIRMED. The mandate shall issue forthwith.

                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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