UNITED STATES COURT OF APPEALS
Filed 11/2/95
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
(
Plaintiff-Appellee, )
) No. 95-5045
v. ) (D.C. No. 94-C-1146-E)
) (N.D. Okla.)
JAMES E. JOUBERT, )
)
Defendant-Appellant. )
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel
has determined unanimously to honor the parties’ request for a
decision on the briefs without oral argument. See Fed. R. App.
P. 34(f); 10th Cir. R. 34.1.9. The cause is therefore ordered
submitted without oral argument.
James Joubert filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2255 alleging ineffective
assistance of counsel at both the trial and appellate levels.
The district court denied Mr. Joubert’s petition on the merits.
Mr. Joubert appeals this denial, and we affirm.
*
This order and judgment is not binding precedent, except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 the court’s General
Order filed November 29, 1993. 151 F.R.D. 470.
Mr. Joubert argues that his counsel erred by failing to
object to jury instructions referring to the controlled substance
as “cocaine” when the indictment referred to the controlled
substance as “cocaine-base (crack).” The district court agreed
that the reference to “cocaine” was inaccurate but held it was
harmless.
To succeed on an ineffective assistance of counsel claim,
Mr. Joubert must prove both that (1) his counsel’s performance
fell below an objective standard of reasonableness, and (2) that
a reasonable probability exists that, but for his counsel’s
unprofessional errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687-88,
694 (1984). We need not address whether Mr. Joubert’s counsel’s
performance was deficient if we determine that Mr. Joubert did
not suffer prejudice. Id. at 697.
Mr. Joubert asserts that the indictment was constructively
amended and that the jury may have convicted him on a legally
insufficient basis. “An indictment is constructively amended if
the evidence presented at trial, together with the jury
instructions, raises the possibility that the defendant was
convicted of an offense other than that charged in the
indictment.” United States v. Apodaca, 843 F.2d 421, 428 (10th
Cir. 1988) (citations omitted).
Mr. Joubert was convicted of conspiracy to possess with
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intent to distribute a controlled substance and conspiracy to
distribute a controlled substance in violation of 21 U.S.C. §
846. Although the reference in the jury instructions to the
controlled substance cocaine instead of cocaine-base (crack) was
inaccurate, the distinction between the two forms of cocaine is
not relevant to the conspiracy charge. The essence of a drug
conspiracy is not the type of controlled substance involved, but
rather is a defendant’s participation in an illegal agreement to
commit substantive drug violations. As is true with respect to
the substantive drug offenses underlying a conspiracy, the
quantity of drugs is not an element of the crime and is only
relevant to sentencing. Cf. United States v. Cox, 934 F.2d 1114,
1121 (10th Cir. 1991)(“[T]he quantity of the [controlled
substance] possessed by a defendant is not an element of the
substantive offense as defined in 21 U.S.C. § 841(a).”); United
States v. Poole, 929 F.2d 1476, 1483 (10th Cir. 1991)(“The
quantity of a substance possessed by the defendant becomes
relevant only in computing a base offense level under the
sentencing guidelines.”). In order to convict of a substantive
drug offense, the government need not prove the quantity involved
beyond a reasonable doubt. United States v. Jenkins, 866 F.2d
331, 334 (10th Cir. 1989). Similarly, the quantity of controlled
substance is not relevant to a conviction for conspiracy to
distribute the controlled substance; it is relevant only to
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sentencing.
Cocaine-base is a form of cocaine which is considered by
Congress, for sentencing purposes only, to be more offensive than
powder cocaine.1 Because the legal distinction between cocaine
and cocaine-base (crack) is relevant only to sentencing, the
indictment was not constructively amended, and Mr. Jenkins was
not prejudiced by his attorney’s failure to object to the jury
instructions. No reasonable possibility exists that Mr. Joubert
was convicted of a crime not charged in the indictment.
The judgment of the district court is AFFIRMED substantially
for the reasons given in the district court’s opinion. The
mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
1
The district court’s imposition of a sentence based on
cocaine-base was supported by a preponderance of the evidence at
the trial that cocaine-base was the object of the conspiracy.
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