IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40687
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT LEE SMITH, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-98-CV-164
USDC No. G-95-CR-11-1
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June 14, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Herbert Lee Smith, III, federal prisoner #46227-079, appeals
from the district court’s denial of his motion to vacate,
correct, or set aside his sentence under 28 U.S.C. § 2255. Smith
argues that the Government failed to prove by a preponderance of
the evidence that the offense involved crack cocaine as opposed
to some other form of cocaine base and that his counsel was
ineffective for failing to raise this objection at sentencing.
*
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that this opinion should not be published and is not precedent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. 98-40687
- 2 -
We have reviewed the record, the briefs of the parties, and
the applicable law, and we find no reversible error. Smith
failed to present, either in the district court or in this court,
any specific, verified proof that the drug in question was some
form of cocaine base other than crack cocaine. Accordingly, he
cannot show that he has been prejudiced by his attorney’s failure
to raise this issue. See Strickland v. Washington, 466 U.S. 668,
687 (1984); Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).
Although Smith also briefs other issues, our review is
limited to the sole issue specified in the certificate of
appealability granted by the district court. See Lackey v.
Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).
The judgment of the district court is AFFIRMED.