United States v. Gordon

                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 01-6070



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


PAUL C. GORDON,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CR-93-85)


Submitted:   June 21, 2001                 Decided:   June 28, 2001


Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Paul C. Gordon, Appellant Pro Se.    David T. Maguire, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Paul Gordon, sentenced in 1993 for conspiring to distribute

over 300 grams of cocaine base, seeks to appeal the district

court’s dismissal of his motion under 28 U.S.C.A. § 2255 (West

2000).   On appeal, Gordon contends the district court erred in

dismissing his claim of ineffective assistance of counsel based on

his counsel’s failure to raise an objection to the amount of

cocaine base attributable to Gordon.   However, because Gordon does

not challenge the determination in his presentence report that he

was responsible for conspiring to distribute at least 208 grams of

cocaine base prior to June 1992, and Gordon’s sentence was predi-

cated on his distribution of at least 150 grams of cocaine, see

United States Sentencing Guidelines Manual § 2D1.1(c)(3) (2000),

Gordon cannot demonstrate prejudice as a result of his attorney’s

failure to raise this objection at sentencing, see Strickland v.

Washington, 466 U.S. 668, 687-88 (1984) (requiring both deficient

performance and resulting prejudice in order to sustain an ineffec-

tive assistance of counsel claim).   Accordingly, we deny a certif-

icate of appealability, and dismiss Gordon’s appeal.*   We dispense

with oral argument because the facts and legal contentions are




     *
       Although Gordon’s appeal was not received until two years
after the denial of his § 2255 motion, we assume without deciding
that Gordon timely mailed notice of his appeal on January 12, 1999
as he claims.


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adequately presented in the materials before the court and argument

would not aid in the decisional process.




                                                         DISMISSED




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