United States v. Housel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 2 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 03-3042
(D. Kan.)
JOHN RICHARD HOUSEL, Sr., (D. Ct. No. 02-CV-3089-JAR)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, PORFILIO, Circuit Judge, and BRORBY,
Senior Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

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This order and judgment is not binding precedent except under the doctrines of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.
 Appellant John Richard Housel, a federal inmate appearing pro se, seeks a

certificate of appealability to appeal the district court’s order dismissing his

motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.

His claims center on allegations of ineffective assistance of counsel during

sentencing. We deny his request for a certificate of appealability on all, but one

issue, and dismiss his appeal with respect to those issues. Pursuant to 28 U.S.C.

§ 2253(c), we grant a certificate of appealability on the issue regarding the

amount of pseudoephedrine to be applied in calculating his sentence, but

nevertheless affirm the district court’s decision on other grounds.

Mr. Housel was charged in a six-count indictment, including offenses

relating to distribution of marijuana, conspiracy to manufacture

methamphetamine, and possession of pseudoephedrine and iodine with intent to

manufacture methamphetamine. In exchange for dismissal of four counts, Mr.

Housel pled guilty to one count of distributing marijuana in violation of 21 U.S.C.

§ 841(a)(1) and one count of attempted distribution of marijuana in violation of

21 U.S.C. § 846. In order to understand Mr. Housel’s ineffective assistance of

counsel claims, it is necessary to explain the types and amount of contraband

involved in calculating his sentence.

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 The specific contraband used in determining Mr. Housel’s sentence

included the 1,128 grams (or 1.13 kilograms) of marijuana to which he pled

guilty, and the “related conduct” contraband consisting of multiple chemicals he

intended to use to manufacture methamphetamine, but for which he received no

conviction. According to the presentencing report, Mr. Housel was attempting to

use those chemicals to manufacture methamphetamine, and therefore, the base

offense level in United States Sentencing Guidelines Manual §2D1.1 applied in

calculating his sentence, rather than §2D1.11. See U.S.S.G. §2D1.11(c) (stating if

an offense involves an attempt to manufacture controlled substances, §2D1.1 is

applied.) According to the presentencing report, the chemicals involved included

an amount of iodine capable of producing 708 grams of methamphetamine,

phosphorus capable of producing 1,043 grams of methamphetamine, and

pseudoephedrine capable of producing 178 grams of methamphetamine.

Because Mr. Housel’s sentence calculation involved both marijuana and

chemicals used for producing methamphetamine, the probation officer who

prepared the presentencing report converted a portion of the total amount of

producible methamphetamine for which Mr. Housel was responsible into a total

volume of marijuana. In so doing, the probation officer converted only the most

abundant chemical – phosphorus – which laboratory analysis indicated could

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produce 1,043 grams of methamphetamine. Once the 1,043 grams was converted

into marijuana, the total conversion amount consisted of 10,430 kilograms of

marijuana. When added to the 1.13 kilograms of actual marijuana he possessed,

the total amount of marijuana attributable to Mr. Housel in the presentencing

report totaled 10,431 kilograms of marijuana.

The presentencing report concluded that 10,431 kilograms of marijuana

results in a base offense level of 36, which together with Mr. Housel’s criminal

history category of III, placed him in a sentencing range of 235-293 months

imprisonment. See U.S.S.G. §2D1.1(c)(2) and ch. 5, pt. A (1998 Sentencing

Table). However, the presentencing report also pointed out that the offenses and

statutes to which Mr. Housel pled guilty provided a maximum of only sixty

months or five years imprisonment, and that the terms of imprisonment must run

consecutively if the highest statutory maximum, as in this case, is less than the

guideline range. Compare 21 U.S.C. § 841(b)(1)(D) and U.S.S.G. §5G1.2(d). As

a result, the presentencing report calculated the appropriate sentence range at 120

months. Mr. Housel’s counsel initially filed several objections to the

presentencing report, but withdrew them at sentencing, stating they would not

affect Mr. Housel’s sentence. See United States v. Housel, No. 00-3252, 2001

WL 557977 at *1 (10th Cir. May 24, 2001) (unpublished decision). The district

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court relied on the presentencing report, and on August 23, 2000, sentenced Mr.

Housel to two sixty-month terms of imprisonment to run consecutively. Id.

Mr. Housel filed a direct appeal challenging the calculation in the

presentencing report attributing 10,431 kilograms of marijuana to him. Id.

Because he did not raise this argument prior to sentencing, this court reviewed his

claim for “plain error.” Id. In so doing, we rejected Mr. Housel’s contention his

conduct should have been treated as possession of a listed chemical under

U.S.S.G. §2D1.11, which would result in a lesser sentencing range, rather than an

attempt to manufacture a controlled substance under §2D1.1. Id. at 1-2. Our

ruling was based on a factual determination in the presentencing report that Mr.

Housel intended to manufacture methamphetamine – conduct for which U.S.S.G.

§2D1.1 is applied, and for which no plain error was shown. Id. In addition, this

court noted Mr. Housel’s appeal seemed to suggest his counsel acted ineffectively

in failing to raise objections to the Presentencing Report, and directed him to file

a collateral proceeding if he wished to pursue those claims. Id. at 2.

Mr. Housel filed the instant § 2255 motion, raising the following

ineffective assistance of counsel issues: 1) counsel failed to raise the argument

his sentence should have been calculated under sentencing guideline §2D1.11

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instead of §2D1.1; 2) counsel failed to object to the use of phosphorus, an

unlisted chemical, as the basis for the converted quantity of methamphetamine

used to calculate the base offense level; and 3) counsel failed to otherwise

function as an effective advocate for his client.

Following the government’s response and opposition to Mr. Housel’s

motion, the district court issued a “Memorandum and Order Denying Motion to

Vacate Sentence” (Memorandum), in which it rejected Mr. Housel’s arguments in

support of his ineffective assistance of counsel claims and dismissed his motion.

Specifically, the district court determined that the sentencing judge properly

applied U.S.S.G. §2D1.1 because the preponderance of the evidence demonstrated

Mr. Housel intended to use the chemicals at issue to manufacture

methamphetamine.

Next, the district court examined Mr. Housel’s related claim that the

sentencing court, in calculating the amount of methamphetamine attributable to

him, improperly applied an unlisted chemical under U.S.S.G. §2D1.1 – i.e.,

phosphorus, rather than one of the listed chemicals – iodine or pseudoephedrine.

The government did not dispute Mr. Housel’s contention that phosphorus should

not have been used to calculate his sentence, but reasoned pseudoephedrine, as a

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listed chemical, could be used instead. The district court agreed and explained

that if pseudoephedrine had been applied, instead of phosphorus, “there is no

reasonable probability that the outcome of the proceedings would have been

different.” In support, the district court relied on the presentencing report to

point out that 388.8 grams of pseudoephedrine would result in 178 grams of

methamphetamine, which when converted into marijuana and added to the 1.13

kilograms of marijuana, would place the base offense level at 32, resulting in a

sentencing range far exceeding the 120-month statutory maximum term of

imprisonment imposed. See U.S.S.G. ch. 5, pt. A (1998 Sentencing Table)

(showing applicable guideline sentencing range at 151-188 months of

imprisonment).

The district court also considered Mr. Housel’s argument his counsel failed

to argue Mr. Housel should only be responsible for the 250 grams of

pseudoephedrine he agreed to purchase from agents, and not the 388.8 grams that

agents delivered. 1 Mr. Housel asserted that 250 grams of pseudoephedrine would

produce only 95 grams of methamphetamine, placing him in a sentencing range

1
In support of his argument, Mr. Housel relied on United States v. Perez de Dios,
in which this circuit held that, under U.S.S.G. §2D1.1, a defendant is responsible for the
quantity of cocaine he agrees to buy and not the amount the government delivers. See
237 F.3d 1192, 1195 (10th Cir. 2001).

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substantially below 120 months imprisonment. The district court determined Mr.

Housel’s failure to challenge the presentencing report’s calculation of either

iodine or pseudoephedrine at trial or on direct appeal imposed a procedural bar to

this ineffective assistance of counsel claim. In so concluding, the district court

noted that Mr. Housel retained different counsel at trial and on appeal, and his

appellate counsel failed to raise this issue on direct appeal.

Finally, the district court determined counsel did not fail to function as an

effective advocate based on his statements made at sentencing or his failure to

move for a downward departure. After careful analysis, the district court

concluded counsel’s conduct, under the circumstances in the case, did not

constitute ineffective performance under Strickland v. Washington, 466 U.S. 668,

694 (1984.) Accordingly, the district court dismissed Mr. Housel’s § 2255 motion

and denied his request for a certificate of appealability.

On appeal, Mr. Housel renews his request for a certificate of appealability,

and raises the same issues asserted in his motion and rejected by the district court.

Mr. Housel contends the district court erred in determining his ineffective

assistance of counsel claim, on the proper amount of pseudoephedrine used in

calculating his sentence, was procedurally barred. In support, Mr. Housel relies

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on Massaro v. United States, which holds that failure to raise ineffective

assistance of counsel claims on direct appeal does not bar review in a later

collateral proceeding. See __ U.S. ___, ___, 123 S. Ct. 1690, 1694, 1696 (2003).

Finally, he contends the district court erred in failing to grant an evidentiary

hearing on the merits of his claims. The government filed a brief opposing both

Mr. Housel’s appeal and request for a certificate of appealability.

An appeal may not be taken from a final order in a § 2255 proceeding

without a certificate of appealability. 28 U.S.C. § 2253(c)(1). In order for a

movant to be entitled a certificate of appealability, he must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where

a district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,

338(2003) (quotation marks, alteration, and citation omitted). When the district

court dismisses a habeas motion “on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a [certificate of appealability] should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

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right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

These are threshold inquiries we apply to determine whether we may

entertain an appeal. See Miller-El, 123 S. Ct. at 1039. We may perform these

inquiries with “a preliminary, though not definitive,” analysis of the claims

raised. Id. at 1040. In reviewing a district court’s dismissal of a motion for post

conviction relief, we are free to affirm a district court decision on any grounds for

which there is a sufficient record, including grounds not relied on by the district

court. See United States v. Alvarez, 137 F.3d 1249, 1251 (10th Cir. 1998). We

review the denial of an evidentiary hearing on a § 2255 motion for abuse of

discretion. See United States v. Whalen, 976 F.2d 1346, 1348 (10th Cir. 1992).

Applying these principles, we have conducted a thorough review of the

pleadings, record on appeal, and the district court’s decision. Under the

circumstances and record presented in this case, we conclude no hearing was

warranted, and therefore, the district court did not abuse its discretion by denying

a hearing on any of Mr. Housel’s claims. For the purpose of judicial economy,

we decline to duplicate the district court’s analysis on those issues on which it

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addressed the merits, other than to conclude Mr. Housel clearly fails to make a

substantial showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c). Thus, for substantially the same reasons set forth in the district court’s

January 6, 2003 Memorandum, we deny Mr. Housel’s request for a certificate of

appealability as to those issues and dismiss his appeal with respect to them.

We grant a certificate of appealability on Mr. Housel’s claim of ineffective

assistance of counsel concerning the amount of pseudoephedrine to be applied in

calculating his sentence, which the district court determined was procedurally

barred. Because we can easily resolve the issue on other grounds, we decline to

remand the issue to the district court and instead directly address the merits of his

claim. 2

This circuit has held that “[w]hen a defendant fails to raise a claim on

direct appeal, he is barred from pursuing that claim in a later § 2255 proceeding,

absent a showing of cause and actual prejudice or a fundamental miscarriage of

justice,” but that “[t]his bar does not apply to an ineffective assistance of counsel

2
Given our agreement with the district court on Mr. Housel’s ineffective
assistance of counsel claim with respect to any “downward departure,” we decline to
entertain his assertion that any calculation of his sentence should include a three-point
reduction for acceptance of responsibility.

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claim.” United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.) (quotation marks

and citation omitted), cert. denied, 537 U.S. 961 (2002). This is in accord with

Massaro v. United States, which holds that failure to raise an ineffective

assistance of counsel claim on direct appeal does not bar review in a later

collateral proceeding. See 123 S. Ct. at 1694, 1696. Under the circumstances

presented here, it is likely that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling with respect to Mr. House’s

claim. See Slack, 529 U.S. at 484. However, in this case, even assuming Mr.

Housel’s ineffective assistance of counsel claim is not barred, we can easily

resolve his claim on the merits and conclude he is not entitled to relief.

In addressing Mr. Housel’s claim on the merits, we must determine whether

the failure of Mr. Housel’s counsel to raise an objection to the amount of

pseudoephedrine requested was deficient and if it was deficient, whether it

prejudiced Mr. Housel. See Strickland, 466 U.S. at 687. To succeed, Mr. Housel

must show “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694.

We begin by noting that even if Mr. Housel agreed to only purchase 250

grams of pseudoephedrine, and not a total of 388.8 grams, it is unclear how he

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arrives at his calculation that 250 grams would produce only 95 grams of

methamphetamine. Similarly, if 388.8 grams is used, it is unclear how he arrives

at his calculation that 388.8 grams would, at the most, produce only 142 grams of

methamphetamine, and not the 178 grams of methamphetamine calculated in the

presentencing report. 3 In so doing, he incorrectly asserts that 142 grams

converted into marijuana would result in an offense level of 30, and a sentence

less than the one imposed. Instead, the accurate offense level for 142 grams of

methamphetamine converted to 1,420 kilograms of marijuana is 32, resulting in a

sentencing range of 151-188 – well above the 120-month sentence imposed. See

U.S.S.G. §2D1.1(c)(4) and ch. 5, pt. A (1998 Sentencing Table). We find Mr.

Housel’s incorrect calculation of the base offense level, and his unsupported

pseudoephedrine computations, together with his failure to provide an adequate

record or references to support them, insufficient in this case to support his claim.

See United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir.), cert.

3
On appeal, Mr. Housel provides the following equation, without any explanation
of how he arrived at its components: “250 grams of [pseudo]ephedrine x .5 x .76 = 95
grams [methamphetamine] x 10kg marijuana = 950 kg.” Apparently, “.5” refers to a fifty
percent yield rate and “.76” to a twenty-four percent HCL salt removal rate referenced in
one of his district court pleadings. But neither his appeal brief nor record references
explain why these percentages are appropriate or correct. To show the possible fallacy of
Mr. Housel’s computations, if the above equation is applied to 388.8 grams, it results in
147.75 grams of methamphetamine, and not the 178 grams used in the presentencing
report or the 142 grams Mr. Housel claims would result.

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denied, 522 U.S. 847 (1997).

Even if the record supported Mr. Housel’s claim with respect to the amount

of pseudoephedrine applied, Mr. Housel’s sentence would be unaffected because

the methamphetamine conversion for iodine would result in the same sentence he

received. Mr. Housel claims iodine is not a listed chemical under the sentencing

guidelines and cannot be used to calculate his sentence. We disagree. In 1996,

iodine was explicitly designated as a List II chemical in the Comprehensive

Methamphetamine Control Act, Pub. L. No. 104-237, § 204, 110 Stat. 3099

(codified at 21 U.S.C. § 802(35)(I)). The current sentencing guidelines manual

expressly categorizes iodine as a List II chemical under §2D1.11(e)(2).

Admittedly, iodine was not expressly listed in §2D1.11 of the 1998 Sentencing

Guidelines Manual – the version in effect at the time of Mr. Housel’s sentencing.

In such a case, “[i]f the offense is a felony or Class A misdemeanor for which no

guideline expressly has been promulgated, [the court must] apply the most

analogous offense guideline.” See U.S.S.G. §2X5.1 (1997). In this case, the

probation officer determined the analogous offense guideline for iodine was

methamphetamine, resulting in conversion of the iodine into 708 grams of

methamphetamine and then a conversion to 7,080 kilograms of marijuana.

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 Similarly, under the sentencing guidelines applicable to Mr. Housel, it is

also appropriate to use 708 grams of methamphetamine to calculate his sentence,

rather than the amounts of methamphetamine attributed to pseudoephedrine. This

is because U.S.S.G. §2D1.11 indicates that if more than one chemical is involved,

regardless of whether it is Class I or II, the court should use the one which results

in the greater offense level, which in this case is 708 grams of Class II iodine

rather than 250 grams of Class I pseudoephedrine. See U.S.S.G. §2D1.11(d)

n.(A)-(D) (1998); see also §2D1.11(e) n.(A) (2003) (providing same result).

In this case, the base offense level for 7,080 grams of marijuana is 34,

placing Mr. Housel in a sentencing guideline range of 188-235 months

imprisonment. See U.S.S.G. §2D1.1(c)(3) and ch.5, pt. A (1998 Sentencing

Table). Thus, it is logical to conclude that if Mr. Housel’s counsel had

successfully objected to the use of phosphorus and the amount of

pseudoephedrine to calculate his sentence, the probation officer and the

sentencing court would have simply applied the most abundant statutory listed

chemical – iodine – to calculate his sentence, which would have resulted in an

offense level higher than the offense level for the 250 grams of pseudoephedrine

Mr. Housel claims is the appropriate amount. For these reasons, even if Mr.

Housel’s counsel had raised these objections, the sentencing range would have far

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exceeded the 120-month statutory maximum imposed. Given the circumstances of

this case, Mr. Housel’s counsel’s failure to raise an objection was not deficient,

or if it was deficient, it did not prejudice Mr. Housel. See Strickland, 466 U.S. at

687. Accordingly, Mr. Housel has failed to show “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

For these reasons, Mr. Housel’s request for a certificate of appealability is

granted on his ineffective assistance of counsel claim concerning the use of

pseudoephedrine to calculate his sentence, but for the reasons delineated here, the

district court’s judgment is nevertheless AFFIRMED. As to all other issues

raised, we conclude Mr. Housel fails to make a substantial showing of the denial

of a constitutional right as required by 28 U.S.C. § 2253(c). Thus, for

substantially the same reasons set forth in the district court’s January 6, 2003

Memorandum, we deny Mr. Housel’s request for a certificate of appealability on

those issues and DISMISS his appeal with respect to those issues.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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