U.S. v. Seyfert

• Decision Date: 27 October 1995
• Docket Number: No. 94-10804,94-10804
• Citation: 67 F.3d 544
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne Boyd SEYFERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 544

67 F.3d 544

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Boyd SEYFERT, Defendant-Appellant.

No. 94-10804.

United States Court of Appeals Fifth Circuit.

Oct. 27, 1995.

Wayne Boyd Seyfert, Florence, CO, pro se.

Tanya K. Northrup, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Lubbock, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO ¹, District Judge.

PRADO, District Judge:

Wayne Seyfert appeals from the district court's dismissal of his motion, pursuant to Title 28 U.S.C. section 2255 (1988), attacking his sentence. We affirm.

I.

Seyfert pled guilty to one count of conspiracy to (1) possess with intent to distribute and (2) distribute less than 100 grams of a substance containing a detectable amount of methamphetamine. See 21 U.S.C. Secs. 841(a)(1), 846 (1988). The district court found that Seyfert had conspired to possess 53.845 grams of a mixture containing methamphetamine or 9.761 grams of actual methamphetamine. The district court based its sentence on the 9.761 grams of actual methamphetamine and sentenced Seyfert to a fifty-one-month term of imprisonment, a five-year term of supervised release, and a $50.00 special assessment. Seyfert appealed his sentence, arguing that the district court erred in enhancing his base offense level for possession of a dangerous weapon during the course of the conspiracy. This Court affirmed, holding that the district court's findings were not clearly erroneous.

Seyfert then filed his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255. Seyfert claimed 1) that the Government had failed to prove the quantity of d-methamphetamine, as opposed to 1-methamphetamine, that was contained in the samples of methamphetamine used to calculate Seyfert's sentence; and 2) that his counsel had been ineffective for failing to raise the issue at sentencing.

The district court, based on the findings and recommendation of a United States Magistrate Judge, dismissed Seyfert's motion with prejudice. The court held that Seyfert's sentencing claim was procedurally barred because Seyfert could have raised it on direct appeal and had failed to do so and because it was not a constitutional issue. See United State v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992) ("A district court's technical application of the [Sentencing] Guidelines does not give rise to a constitutional issue."). The court then rejected Seyfert's ineffective assistance of counsel claim on the grounds that Seyfert could show no prejudice because the lab report showed all the methamphetamine to be d-methamphetamine. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (holding that a successful movant claiming ineffective assistance of counsel must show both that counsel's performance was defective and that the defective performance prejudiced the defense). Seyfert now appeals, reasserting both of his claims.

II.

In reviewing a district court's denial of a Section 2255 motion, we review the district court's factual findings for clear error and we review questions of law de novo. United States v. Gipson, 985 F.2d 212, 214 (5th Cir.1993).

A. Direct Attack on Sentence

Generally speaking, Section 2255 provides relief for a petitioner who can establish that either (1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack. See United States v. Faubion, 19 F.3d 226, 232 (5th Cir.1994); United States v. Cates, 952 F.2d 149, 151 (5th Cir.1992), cert. denied, 504 U.S. 962, 112 S.Ct. 2319, 119 L.Ed.2d 238 (1992); and 28 U.S.C. Sec. 2255. In the present case, Seyfert's arguments in support of his first claim for relief under Section 2255 do not raise either a constitutional or a jurisdictional issue. See Vaughn, 955 F.2d at 368. The issue, then, is whether Seyfert's arguments in support of his first claim for relief provide some other legitimate basis for a collateral attack on his sentence.

The district court held that Seyfert's claim could have been raised on direct appeal and was not. Section 2255 does not reach errors not of a constitutional or jurisdictional magnitude that could have been reached by a direct appeal. See United States v. Smith, 32 F.3d 194, 196 (5th Cir.1994); Vaughn, 955 F.2d at 368; and United States v. Stumpf, 900 F.2d 842, 845 (5th Cir.1990). We therefore affirm the district court's holding as to Seyfert's first claim.

B. Ineffective Assistance of Counsel Claim

Seyfert claims that he received ineffective assistance of counsel because his counsel failed to object at sentencing to the lack of proof regarding the quantity of d-methamphetamine contained in the methamphetamine samples used to calculate Seyfert's sentence. ² To prevail on this claim, Seyfert must prove both elements of the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also, United States v. Segler, 37 F.3d 1131, 1136 (5th Cir.1994) (holding that ineffective assistance of counsel claims asserted in a section 2255 motion must meet the Strickland test). Under Strickland, Seyfert "must show that his counsel's performance was both deficient (i.e. that counsel did not provide reasonably effective assistance under prevailing professional norms) and prejudicial (i.e. that errors by counsel actually had an adverse effect on the defense)." Anderson v. Collins, 18 F.3d 1208, 1215 (5th Cir.1994) (internal quotations omitted). A failure to establish either deficient performance or prejudice defeats an ineffective assistance claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071.

1. The district court assumed for the sake of argument that Seyfert's counsel's performance had been deficient but rejected Seyfert's claim because Seyfert had failed to demonstrate the requisite prejudice. The court held that Seyfert could not have been prejudiced by his counsel's failure to raise the d-methamphetamine issue at sentencing because the Government's laboratory report showed that Seyfert's methamphetamine was, in fact, d-methamphetamine. However, the district court's holding was based on a mistaken reading of the laboratory report. The laboratory report summarizes an analysis of three methamphetamine samples. The first contained 3.7 grams of "d-methamphetamine," the second contained 5.8 grams of "d,l methamphetamine," and the third sample contained 0.261 grams of "d,l-methamphetamine." The magistrate judge's findings, adopted by the district court, demonstrate a misunderstanding of the laboratory report; the court interpreted "d-l-methamphetamine" as "d,1-methamphetamine." It then assumed that "d,1-methamphetamine" was the same as d-methamphetamine and did not reach Seyfert's argument that the samples were at least partially composed of l-methamphetamine.

In light of the indication in the laboratory report that two of the three samples of methamphetamine were d,l-methamphetamine, the district court's finding that all three samples were d-methamphetamine was clearly erroneous. However, this Court can resolve Seyfert's claims as a matter of law.

2. Seyfert now questions the proper treatment of d,l-methamphetamine under the Sentencing Guidelines. While this is a potentially valid inquiry, we need not reach it today if Seyfert's counsel's performance was objectively reasonable. See Strickland, 466 U.S. at 700, 104 S.Ct. at 2071 ("Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim."). For this portion of our analysis we assume that Seyfert's counsel saw the laboratory report identifying all the methamphetamine samples as either d-methamphetamine or d,l-methamphetamine.

The Sentencing Guidelines do not explicitly address the issue of how d,l-methamphetamine should be treated for purposes of calculating a defendant's base offense level for a narcotics offense. Section 2D1.1(a)(3) provides that the base offense level for offenses involving drugs is to be calculated by reference to the Drug Equivalency Table in Section 2D1.1(c). See United States Sentencing Commission, Guidelines Manual, Secs. 2D1.1(a)(3), 2D1.1(c) (Nov. 1991). With respect to methamphetamine, the Drug Quantity Table refers only to "Methamphetamine" and "Methamphetamine(actual)." This distinction is explained in a footnote to the table The terms "PCP(actual)" and Methamphetamine(actual)" refer to the weight of the controlled substance, itself, contained in the mixture or substance. For example, a mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP(actual). In the case of a mixture or substance containing PCP or methamphetamine, use the offense level determined by the entire weight of the mixture or substance, or the offense level determined by the weight of the PCP(actual) or methamphetamine(actual), whichever is greater.

U.S.S.G. Sec. 2D1.1 n*. The Drug Quantity Table weights "Methamphetamine(actual)" ten times more heavily than "Methamphetamine" for purposes of calculating a defendant's base offense level under Section 2D1.1.

The commentary to Section 2D1.1 contains Drug Equivalency Tables which can be used as a means of combining different controlled substances to obtain a single offense level. The Drug Equivalency Tables provide that one gram of "Methamphetamine" is equivalent to one kilogram of marijuana while one gram of "Methamphetamine(actual)" is equivalent to 10 kilograms of marijuana.

The Drug Equivalency Tables also contain an explicit reference to "L-methamphetamine" and "Levo-methamphetamine." One gram of "L-methamphetamine" is equivalent to 40 grams of marijuana. Consequently, a defendant must have...