                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 22 2003
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk


    UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,                    No. 02-6135
                                                    (D.C. No. CIV-01-606-A
    v.                                                 and CR-96-108-A)
                                                       (W.D. Oklahoma)
    ERIK LAMONT BROWNE,

                 Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of the 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      This order and judgment is not binding precedent, except under the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 Erik Lamont Browne timely appeals from an adverse district

court order in this 28 U.S.C. § 2255 proceeding.   See Fed. R. App. P. 4(a)(1(B).

We affirm.

      Browne was convicted of conspiracy to distribute cocaine base, 21 U.S.C.

§ 846, possession with intent to distribute cocaine base (and aiding and abetting),

21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2, and use of a telephone to facilitate the

distribution of cocaine base, 21 U.S.C. § 843(b). He was sentenced to 324

months’ imprisonment with 5 years’ supervised release on each of the first two

counts and 48 months’ imprisonment with 1 year’s supervised release on the third,

all terms of imprisonment to run concurrently. On direct appeal, he argued that

certain drug quantities relied on to support his sentence had been calculated

incorrectly. Specifically, he contended that (1) one kilogram of cocaine, seized in

May 1995, lacked any nexus to him and should not have been counted; (2) the

same kilogram should, in any event, have been treated as powder rather than crack

cocaine; and (3) there were no findings to tie him to another half kilogram seized

in June 1995. This court rejected the latter two contentions as waived in the

district court, but remanded for additional findings as to whether the kilogram

seized in May 1995 was in fact within the scope of Browne’s conspiratorial

agreement and foreseeable to him.     United States v. Green , 175 F.3d 822, 836-38

(10 th Cir. 1999).


                                           -2-
       On remand, the district court made the necessary findings and did not alter

Browne’s sentences. On appeal, this court affirmed.       United States v. Browne ,

No. 99-6277, 2000 WL 376626 (10        th Cir. April 13, 2000). Moreover, we

specifically approved, as a proper application of the mandate rule, the district

court’s rejection of Mr. Browne’s attempt to revisit the issues rejected on waiver

grounds on his initial appeal.     See id. at **2.

       Browne then filed this § 2255 proceeding, asserting that (1) his sentences

were illegal under Apprendi v. New Jersey , 530 U.S. 466 (2000), and (2) his trial

counsel had rendered ineffective assistance in waiving the drug quantity/quality

issues noted above and in failing to challenge his sentences on the constitutional

basis later recognized in   Apprendi . The district court denied the ineffective

assistance claims, but held that    Apprendi applied retroactively to this collateral

proceeding and required reduction of Browne’s 324-month sentences to the

twenty-year statutory maximum applicable to offenses involving unspecified drug

quantities. However, pursuant to the mandatory directive in U.S.S.G § 5G1.2(d),

recognized by United States v. Price , 265 F.3d 1097, 1108-09 (10      th Cir. 2001),

cert. denied , 122 S. Ct. 2299 (2002), the district court restructured the sentences

to run consecutively in part and concurrently in part, so that the total punishment

remained the same.     See also United States v. Lott , 310 F.3d 1231, 1242-43 (10      th




                                             -3-
Cir. 2002), petition for cert. filed    (U.S. Feb. 3, 2003) (No. 02-8948). Upon the

entry of judgment, Browne commenced this appeal.

       Browne’s contentions regarding ineffective assistance of trial counsel were

properly rejected by the district court. He complained that counsel should have

argued that the cocaine had not been shown to be crack, specifically because there

was no evidence of any trace of sodium bicarbonate. The district court noted that

the presence of sodium bicarbonate is not necessary,       see United States v. Brooks ,

161 F.3d 1240, 1248 (10 th Cir. 1998); accord United States v. Waters , 313 F.3d

151, 155 (3d Cir. 2002) (collecting cases), and then went on to cite trial testimony

sufficient to prove the substance was indeed crack. Dist. Ct. Order at 3.

Browne’s complaint that counsel failed to challenge drug quantities attributed to

him was rejected based on record evidence tying him to the drugs through his

participation in the conspiracy.       Id. at 4-6. Finally, the court held counsel was not

ineffective for lacking the “clairvoyance” to predict the abrupt change in law

effected by the Supreme Court’s decision in         Apprendi . Id at 9; see Valenzuela v.

United States , 261 F.3d 694, 700 (7 th Cir. 2001) (holding that “an [ineffective

assistance of counsel] argument premised on counsel’s failure to anticipate

Apprendi would be untenable”).

       Turning to the Apprendi claim itself, however, we note that, lacking the

guidance subsequently provided by this court in        United States v. Mora , 293 F.3d


                                              -4-
1213, 1219 (10 th Cir.), cert. denied , 123 S. Ct. 388 (2002), the district court

incorrectly held Apprendi applied retroactively to this collateral proceeding and

required a mechanical reduction of Browne’s individual drug sentences to the

lowest statutory maximum specified in 21 U.S.C. § 841(b)(1)(C)–though with the

compensatory restructuring of the total punishment under U.S.S.G. § 5G1.2(d)

explained above. The improper retroactive application of          Apprendi , inuring to

Browne’s benefit, was not appealed by the government.         1
                                                                  Instead, the only matter

before us is Browne’s objection that in relying on drug quantities never found by

the jury to arrive at the “total punishment” benchmark used in connection with

§ 5G1.2(d), the district court actually violated    Apprendi in the course of applying

it to reduce his sentence in the manner prescribed by      Price and Lott . Even

assuming we could consider such an argument–regarding the correct application

of Apprendi in a collateral proceeding in which the defendant was not entitled to

invoke Apprendi in the first place–this circuit’s prior decisions in      Price and Lott ,

interpreting § 5G1.2(d) and explaining its implementation, are binding on this

panel and foreclose Browne’s claim.


1
       Because the windfall to Browne did not result in an   illegal sentence, i.e., a
sentence that transgressed statutory limits, no sua sponte plain-error correction is
warranted here. See generally United States v. Brown , 316 F.3d 1151, 1159-60 &
n.4 (10 th Cir. 2003) (distinguishing United States v. Moyer , 282 F.3d 1311, 1319
(10 th Cir. 2002), which held that “imposition of an illegal sentence constitutes
plain error even if the sentence favors the defendant” and ordered correction of
sentence even though only defendant had appealed).

                                             -5-
     The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.


                                                  Entered for the Court



                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




                                       -6-
