                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 30 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                             Nos. 99-6306 & 99-6307
                                                   (D.C. Nos. 96-CV-1627
    LYNDELL LLOYD COX and                               & 96-CV-1628)
    CLIFFORD WESLEY COX,                                 (W.D. Okla)

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before BRORBY , 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 these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases

are 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      This order and judgment is not binding precedent, except under the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.
      Defendants Lyndell Lloyd Cox and Clifford Wesley Cox appeal the district

court’s determination upon remand of their joint 28 U.S.C. § 2255 motion to

vacate, set aside, or correct their sentences for conspiracy to distribute

methamphetamine, in violation of 21 U.S.C. § 846.    1
                                                         Having previously granted

defendants' application for a certificate of appealability, see 28 U.S.C. § 2253(c),

we now exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255 and affirm.


                                  BACKGROUND

       In October 1988, defendants pled guilty to conspiracy to distribute

methamphetamine. The Sentencing Guidelines in effect at the time treated

offenses involving d-methamphetamine more severely than those involving l-

methamphetamine.     United States v. Svacina , 137 F.3d 1179, 1186 (10th Cir.

1998). 2 If the substance or mixture at issue contained “any detectable amount of

d-methamphetamine, the defendant may [have been] sentenced at the higher

1
      Defendants had also pled guilty to unlawful manufacture of a destructive
device. Their sentences on that count are not at issue in this appeal.
2
      Both d-methamphetamine (short for “dextromethamphetamine”) and
l-methamphetamine (short for “levomethamphetamine”) are isomeric forms of
methamphetamine. United States v. McEntire , 153 F.3d 424, 431 (7th Cir. 1998).
They “have the same chemical formula but different structural formulas.”          Id.
The two types of methamphetamine also have markedly different effects on a
user. Id. When ingested, d-methamphetamine “produces a profound
physiological effect, creating the high desired by the drug's users,” while
l-methamphetamine produces little or no physiological effect.       Id. The guidelines,
however, no longer distinguish between the two substances.        See, e.g. , Svacina ,
137 F.3d at 1186.

                                          -2-
level.” United States v. Glover , 97 F.3d 1345, 1350 n.5 (10th Cir. 1996). At the

sentencing hearing, the government presented evidence describing the conspiracy

and demonstrating the quantity of methamphetamine involved in defendants’

offense, without providing specific evidence on the type of methamphetamine.

Defendants were sentenced under the d-methamphetamine guideline, and their

sentences were affirmed on appeal. Defense attorneys did not challenge the

application of the higher level.

      In their § 2255 motions, defendants asserted that the government had not

proven that the methamphetamine involved contained a detectable amount of

d-methamphetamine and that their attorneys were constitutionally ineffective for

failing to raise this issue. The government did not respond with a claim that the

drug involved in the conspiracy was d-methamphetamine. Instead, the

government argued that sufficient evidence was presented at the sentencing

hearing to demonstrate that the drug was d,l-methamphetamine – a third substance

composed of 50% d- and 50% l-methamphetamine. The district court denied the §

2255 motions without holding an evidentiary hearing.

      On appeal, this court reversed and remanded, concluding that the record

was inadequate to support the trial court’s findings on two factual questions: (1)

whether the substance was d,l-methamphetamine and (2) if so, whether d,l-

methamphetamine contains detectable d-methamphetamine, so that defendants


                                         -3-
were properly sentenced at the higher offense level.    See United States v. Cox ,

No. 97-6254, 1998 WL 339562, **6 (10th Cir. June 9, 1998) (unpublished).

      During the evidentiary hearing on remand, the district court received

testimony from three witnesses. The government presented two of the witnesses:

an Oklahoma State Bureau of Investigation (OSBI) chemist who had participated

in the investigation of defendants’ crimes and a senior forensic chemist for the

Drug Enforcement Agency (DEA). The OSBI chemist provided a composite list

of items seized in connection with the investigation, but destroyed without testing

for type of methamphetamine.    3
                                    Both government witnesses testified that the

seized equipment and chemicals may be used in the phenyl-2-propanone (P2P)

method of manufacturing methamphetamine, which was the most common method

in use at the time. Unless there is an error in the process, the P2P method

produces only d,l-methamphetamine.

      Concerning the second issue, the witnesses stated that d-methamphetamine

is detectable in d,l-methamphetamine through a scientific process. The process,

however, would require sophisticated equipment and would result in the

destruction of the sample.



3
       Certain items, such as chemicals, glassware, and apparatus, were destroyed
at the scene or shortly thereafter. A laboratory report and other investigatory
materials may have been destroyed in the April 19, 1995 bombing of the Murrah
Building, in Oklahoma City, where the DEA office was located.

                                            -4-
      Defendants’ expert testimony was provided by a forensic chemist retired

from a university faculty. The expert essentially agreed with the government

witnesses that, unless the P2P process is “botched,” it will make only d,l-

methamphetamine. R., vol. 3 at 154. Mistakes in the process would result in the

production of “some contaminants in addition to d,l-methamphetamine.”         Id.

      With regard to the detectability of d-methamphetamine in d,l-

methamphetamine, the expert stated that it was theoretically possible to identify a

d- molecule and an l- molecule, but that the process would change the chemical

structure of the sample. In his opinion, to be detectable, a test must demonstrate

“the separate D form of methamphetamine in combination with the DL molecule.”

Id. at 165. Under this definition, d-methamphetamine is not detectable in d,l-

methamphetamine because the identification process would change the chemical

structure of all three types of methamphetamine.

      The district court took the matter under advisement, then issued its order.

In the order, the court first concluded that the government satisfied its burden of

proving that the methamphetamine involved in the conspiracy for which

defendants were sentenced was d,l-methamphetamine. Next, the court accepted

the government expert’s opinion that a substance is detectable if it can be

identified through a scientific process and found that d-methamphetamine can be




                                         -5-
scientifically detected in d,l-methamphetamine, notwithstanding the fact that the

procedure would destroy the sample.

      Based on its findings on the two remanded issues, the district court

concluded that defendants had not made out a claim of ineffective assistance of

counsel because they had failed to show that, but for their attorneys’ failure to

raise the sentencing issue, “they would have been sentenced at a reduced level

under the [Sentencing] Guidelines.”     Id. This appeal followed.


                                      DISCUSSION

      According to § 2255, relief should be granted if “the judgment was

rendered without jurisdiction, or that the sentence imposed was not authorized by

law or otherwise open to collateral attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack.” On an ineffective assistance of counsel claim, “a

petitioner must establish both that his attorney’s representation was deficient,

measured against an objective standard of reasonableness, and that there is a

reasonable probability that but for counsel’s deficient performance, the result of

the proceeding would have been different.”         Walker v. Gibson , 228 F.3d 1217,

1231 (10th Cir. 2000) (citing   Strickland v. Washington , 466 U.S. 668, 687, 688,

694 (1984)).



                                             -6-
      When reviewing the district court’s denial of a § 2255 motion, we review

the district court’s legal rulings de novo and its factual findings for clear error.

United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998). On appeal,

defendants question the validity of the district court’s findings on both remanded

issues. We have generally treated matters related to the type of

methamphetamine and the detectability of methamphetamine as issues of fact.

See United States v. Lande , 40 F.3d 329, 330 (10th Cir. 1994) (reviewing finding

on involvement of a specific isomer of methamphetamine for clear error);       United

States v. Valdez , 225 F.3d 1137, 1143 (10th Cir. 2000) (discussing the sentencing

court’s finding that substances contained a detectable amount of

methamphetamine).

      After thoroughly reviewing the pleadings and the record, we cannot say that

the district court’s findings are clearly erroneous. Even when “‘no direct

evidence of the drug’s chemical composition or the method of its manufacture is

available, circumstantial evidence may be sufficient to determine which [type of

methamphetamine] isomer is involved.’”      Glover , 97 F.3d at 1350 n.5 (quoting

United States v. Dudden , 65 F.3d 1461, 1471 (9th Cir. 1995);    see also Lande , 40

F.3d at 331 (relying on circumstantial evidence to uphold finding that drug

involved was d-methamphetamine). Here, there is ample support in the record for

the finding that defendants used the P2P method and thereby produced


                                           -7-
d,l-methamphetamine, a substance composed of exactly 50% each of the two

isomers. The finding that d-methamphetamine is detectable in d,l-

methamphetamine is also well grounded in the record.        4



      Based on these findings, the district court correctly concluded that the

initial sentencing determination was proper.     5
                                                     Accordingly, even if their

respective attorneys were deficient in failing to put the government to its proof,

defendants cannot show that they suffered the requisite prejudice under the

Strickland standard. See Walker , 228 F.3d at 1231.




4
       Defendants point out, and the government agrees, that the district court
erred in stating that l-methamphetamine is found in perfumes and cosmetic
products. This statement, however, is immaterial to the court’s factual findings
on the remanded issues.
5
       Contrary to defendant’s contention, there is no ambiguity in the guidelines
as applied in this case, and the rule of lenity is not applicable. See Decker , 55
F.3d at 1513 (stating that the rule of lenity comes into operation only in instances
of ambiguity and uncertainty).

                                           -8-
      We AFFIRM the judgment of the district court for substantially the same

reasons contained in the district court’s Order of June 15, 1999, a copy of which

is attached.



                                                   Entered for the Court



                                                   Wade Brorby
                                                   Circuit Judge




                                        -9-
Attachment not available electronically.
