IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60132
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PERRY JACKSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:97-CV-29-S
USDC No. 3:94-CR-8-4
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October 21, 1999
Before DAVIS, DUHE’, and DeMOSS, Circuit Judges.
PER CURIAM:*
Perry Jackson, federal prisoner # 10055-042, is appealing
the district court’s denial of his 28 U.S.C. § 2255 motion in
which Jackson alleged that he was denied the effective assistance
of counsel at sentencing and on appeal. Jackson specifically
alleged that counsel should have challenged the Government’s
failure to prove that Jackson’s drug conspiracy offense involved
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-60132
-2-
d-methamphetamine as opposed to l-methamphetamine, which would
have resulted in his receiving a substantially lower guideline
sentencing range.
We have reviewed the record, and the briefs of the parties
and affirm the district court’s denial of Jackson’s § 2255
motion. Jackson’s argument that the case should be remanded to
allow him the opportunity to present evidence as to the type of
methamphetamine involved in the offense as was done in United
States v. Acklen, 47 F.3d 739 (5th Cir. 1995) is misplaced. In
Acklen, the court determined that Acklen’s conclusional
allegations that the offense involved l-methamphetamine were
insufficient to show prejudice. However, in the particular
context of Acklen’s appeal, the court determined that an
affirmance would be improper because the district court in
addressing the § 2255 motion had proceeded on the baseless
assumption that l-methamphetamine had been involved in the
offense, there had been no clear challenge in the district court
to Acklen’s allegations, and Acklen had received no opportunity
to remedy the deficiencies in his allegations. Acklen, 47 F.3d
at 744. Jackson’s case is distinguishable from Acklen in that
the district court did not assume that the substance involved in
his offense was l-methamphetamine. Therefore, unlike Acklen,
Jackson had the opportunity in the district court to present
evidence to support his contention.
No. 99-60132
-3-
Jackson has failed to tender “some specific verified basis
or evidence” that the drug involved in his offense was l-
methamphetamine. Acklen, 47 F.3d at 742. Therefore, Jackson has
failed to show that he was prejudiced by counsel’s failure to
raise an objection at sentencing.
Because the denial of the § 2255 motion is affirmed based on
Jackson’s failure to make any showing that the offense involved
l-methamphetamine, it is not necessary to consider his argument
that the safety valve provision would be applicable if the case
is remanded for resentencing.
AFFIRMED.