Rogers v. U.S., 95-6092

• Decision Date: 26 July 1996
• Docket Number: No. 95-6092,95-6092
• Parties: Donald Steven ROGERS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1388

91 F.3d 1388

Donald Steven ROGERS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 95-6092.

United States Court of Appeals, Tenth Circuit.

July 26, 1996.

Robert C. Jenkins (Charles D. Weisselberg, Dennis E. Curtis, and Carrie L. Hempel with him on the brief), University of Southern California Law Center, Los Angeles, California, for Defendant-Appellant.

Randel Sengel (Patrick M. Ryan and Leslie M. Maye were on the brief), U.S. Attorneys Office, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before HENRY, BRISCOE and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

In sentencing Donald Rogers, a federal prisoner convicted of various drug related crimes, the district court multiplied by seven the amount of heroin he delivered for subsequent distribution. Rogers appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence and argues that the district court improperly enhanced the twenty-four ounces of pure heroin that he admitted delivering by the number of times the drug was cut for resale. We affirm.

I

In 1988, a jury found Rogers guilty of engaging and conspiring to engage in racketeering activities, possessing and conspiring to possess heroin with intent to distribute, and traveling interstate to facilitate the conspiracy. According to the presentence report, Rogers delivered heroin from California to Johnny Lee Sanders, who allegedly operated a heroin distribution enterprise in Oklahoma City from 1978 to 1987. Rogers admitted to the probation officer preparing the report that he was involved in the heroin distribution conspiracy from January to November of 1987 and that during that time he delivered a total of twenty-four ounces of pure heroin to Sanders. ¹

Applying the sentencing guidelines, ² which tie sentences for drug offenses to the "total weight" of the drugs involved, the probation officer recommended that Rogers be held liable for the subsequent cuts that were made to the pure heroin he delivered to Sanders. The probation officer found that the "amount which was distributed by Mr. Rogers to the conspiracy increased sevenfold from 24 ounces to approximately 168 ounces." Appellant's Supp.App. at 11. Accordingly, the probation officer used "168 ounces of diluted heroin" to calculate Rogers' base offense level. See id. at 12.

Rogers objected to the recommendation. He urged the court to base the sentence on the 24 ounces of heroin he admitted delivering to Sanders. Id. at 17; Appellant's App. at 39. The government, on the other hand, argued that Rogers' sentence should be based on the total quantity of heroin distributed by Sanders' organization over the years, thirty kilograms. Appellant's App. at 40-43.

The district court refused to hold Rogers responsible for the entire thirty kilograms of heroin that had been distributed by the conspiracy. See id. at 44. The court ruled, however, that for purposes of determining the base offense level, it was appropriate to use a multiplier to account for cuts that were made to the pure heroin Rogers supplied. Id. at 43-44. Relying on trial testimony, the court found that raw heroin was cut at least seven times before reaching the street. Id. Thus, in accordance with the presentence report, the court used 168 ounces of heroin to calculate the base offense level.

Rogers' total offense level, after deducting two points for acceptance of responsibility, was 32, which corresponded to a sentencing range of 151--181 months. The court sentenced Rogers near the bottom of that range, to 156 months for each of the racketeering and heroin distribution offenses. The court also sentenced Rogers to 60 months for traveling interstate to facilitate the conspiracy and ordered all sentences to run concurrently. Rogers appealed. In a previous opinion, we affirmed his convictions. See United States v. Rogers, 921 F.2d 975 (10th Cir.), cert. denied, 498 U.S. 839, 111 S.Ct. 113, 112 L.Ed.2d 83 (1990). Rogers did not challenge on direct appeal the drug quantity upon which his sentence was based. See id. at 977 n. 5.

Rogers then filed this § 2255 motion challenging his sentence. He argued that the district court erred in multiplying the heroin he delivered by the number of times it was cut for resale and that his attorney's ineffective assistance provides cause for not raising this issue on direct appeal. ³ In response, the government argued that the guidelines permitted the conversion of the pure heroin to the street quantity at the retail level, to reflect the scale of Rogers' participation in the offenses. The government also submitted an affidavit of Rogers' appellate attorney, ⁴ stating, "I did not raise the issue of the 'Multiplier' in the appeal of Donald Steven Rogers because I did not feel that the issue had merit." Appellant's App. at 108.

Because Rogers did not challenge the drug quantity on direct appeal, the district court ruled he was procedurally barred from raising that claim in his § 2255 motion unless he showed cause and prejudice. The court determined that the attorney's deliberate decision to forgo the claim on direct appeal was not outside the range of professionally competent assistance required under the Sixth Amendment, given that applicable sentencing guidelines permit sentences for drug conspiracy offenses to be based on conduct in furtherance of a conspiracy that was known or reasonably foreseeable to the defendant. Therefore, the attorney's conduct did not provide cause excusing the procedural default.

II

A § 2255 motion cannot be used "to test the legality of matters which should have been raised on appeal." United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987), cert. denied, 487 U.S. 1222, 108 S.Ct. 2881, 101 L.Ed.2d 915 (1988). To obtain relief on new claims, a § 2255 petitioner must show "cause excusing his ... procedural default, and ... actual prejudice resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982) (quotations omitted).

An attorney's error provides cause to excuse a procedural default only if the error amounts to constitutionally ineffective assistance of counsel. See Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991); see also United States v. Kissick, 69 F.3d 1048, 1054 (10th Cir.1995). To establish ineffective assistance of counsel, a defendant must show (1) that his attorney's performance was deficient and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); United States v. Cook, 49 F.3d 663, 665 (10th Cir.1995).

Repentance born of a failed trial or sentencing strategy can often be turned against defense counsel. We recognize that such criticism is often converted into a challenge asserting inadequate assistance. Thus, we look for genuine--rather than perceived--ineffectiveness of counsel. Under Strickland we first examine whether " 'counsel made errors so serious that [he] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.' " Kissick, 69 F.3d at 1054 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). "[A] defendant is entitled to the exercise [of] the skill, judgment and diligence of a reasonably competent defense attorney." Id. (quotation and citation omitted). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. We "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

Under the prejudice aspect of Strickland we inquire whether " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Kissick, 69 F.3d at 1055 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. "However, a court may not set aside a conviction or a sentence solely because the outcome would have been different absent counsel's deficient performance." Kissick, 69 F.3d at 1055. "Instead, in order to establish the required prejudice, a defendant must demonstrate that counsel's deficient performance rendered the proceeding 'fundamentally unfair or unreliable.' " Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 368-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993)).

"In a § 2255 action, we review the district court's legal conclusions regarding ineffective assistance of counsel claims de novo." Cook, 49 F.3d at 665. We also review the district court's interpretation and application of the sentencing guidelines de novo. Id.

III

Rogers was sentenced in November 1988, barely one year after the sentencing guidelines took effect. The 1988 guidelines required the district court to set Rogers' base offense level at the "level specified in the Drug Quantity Table." USSG § 2D1.1(a)(3) (1988). Similar to the current guidelines, the 1988 Drug Quantity Table established sixteen base offense levels, based on the "Controlled Substances and Quantity" involved in the drug offense. Id., Drug Quantity Table. A footnote to the Drug Quantity Table stated, in relevant part: "The scale amounts for all controlled substances refer to the total weight of the controlled substance. ...