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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11769
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:09-cv-00629-CG,
1:06-cr-00206-CG-B-1
QUANG VAN NGUYEN,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
__________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(May 6, 2014)
Before HULL, MARCUS, and JORDAN, Circuit Judges.
PER CURIAM:
Quang Van Nguyen appeals the district court’s denial of his motion to
vacate, see 28 U.S.C. § 2255, in which he alleged that his trial counsel was
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ineffective for not objecting to the district court’s determination that the drug type
involved in his narcotics offense was methamphetamine “ice.” We had previously
remanded the case to the district court for an evidentiary hearing on that ineffective
assistance of counsel claim. After review of the record, which includes a transcript
of the evidentiary hearing and the parties’ briefs, we affirm. 1
I
Mr. Nguyen pled guilty to one count of possession of an unregistered
firearm, in violation of 26 U.S.C. § 5861(d), and was convicted by a jury of one
count of conspiracy to distribute more than 500 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(b)(1)(A) & 846. Mr. Nguyen’s narcotics offense
was a so-called “dry” conspiracy because no drugs were seized, and the
government proved the existence of the narcotics through the testimony of Mr.
Nguyen’s co-conspirators. During their testimony, the co-conspirators referred to
the drugs only as “ice,” and provided descriptions of them as, for example, “a clear
substance [that] looks like rock salt or salt.” D.E. 48 at 93, 95-96. Mr. Nguyen did
not object to the admissibility of this evidence.
At sentencing, the district court determined that the drug type in the
conspiracy was methamphetamine “ice,” which is of a higher purity and leads to a
1
On appeal, Mr. Nguyen did not raise any claim about whether his appellate counsel was
ineffective until his reply brief, and, thus that claim is deemed abandoned. See Starship Enters.
of Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243, 1254 (11th Cir. 2013).
2
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higher offense level. See U.S.S.G. § 2D1.1(c), n.(c). As a result, Mr. Nguyen’s
base offense level under the Sentencing Guidelines was 36 rather than 32. With
the application of two enhancements for possession of a firearm and obstruction of
justice, the district court’s finding of “ice” resulted in a sentencing range of 324 to
405 months in custody, instead of 210 to 262 months. The district court ultimately
sentenced Mr. Nguyen to 364 months for the conspiracy count, and 120 months for
the firearm count, to be served concurrently. In his § 2255 motion, Mr. Nguyen
alleged that his trial counsel had rendered ineffective assistance by failing to object
to the reference of the methamphetamine as “ice.”
At the evidentiary hearing following our remand, Mr. Nguyen, represented
by another attorney, called his trial counsel to testify. Mr. Nguyen also submitted
an affidavit in which he claimed that he had requested his trial counsel to contest
the drug type and quantity prior to sentencing. In addition, Mr. Nguyen tried to
submit a report from the Drug Enforcement Administration to show that the
methamphetamine he was selling was below the reported market value for “ice,”
but the district court declined to take judicial notice of the DEA report.
After the hearing, the district court denied Mr. Nguyen’s § 2255 motion,
ruling that he had failed to satisfy his burden under Strickland v. Washington, 466
U.S. 668 (1984). Mr. Nguyen now appeals.
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II
A claim of ineffective assistance of counsel is a mixed question of law and
fact. That means we review findings of fact for clear error and legal determinations
de novo. See Conklin v. Schofield, 366 F.3d 1191, 1201 (11th Cir. 2004).
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. See Strickland, 466 U.S. at 685-86. To warrant relief on a
claim that counsel was ineffective, a defendant must show that (1) counsel’s
performance was deficient and (2) the deficient performance was prejudicial. Id. at
687.
In assessing the performance prong, “counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id. at 690. This presumption is even stronger
when counsel is an experienced trial attorney. See Chandler v. United States, 218
F.3d 1305, 1316 (11th Cir. 2000) (en banc). Simply because trial counsel used an
unsuccessful approach or, in hindsight, another tactic may have proven successful,
does not demonstrate that counsel was ineffective. Id. at 1316-17.
To make his burden on the “performance” prong of Strickland, Mr. Nguyen
first must demonstrate that “no competent counsel would have taken the action that
his counsel did take.” Id. at 1315. An attorney’s ignorance of a well-defined legal
principle could be inexcusable and demonstrate deficient performance. See Smith
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v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999). But where “the legal principle
at issue is unsettled . . . counsel will not have rendered deficient performance for
an error in judgment.” Black v. United States, 373 F.3d 1140, 1144 (11th Cir.
2004).
Here, Mr. Nguyen based his claim of deficient performance on his trial
counsel’s failure to object to the use of the word “ice.” He argues that any
reasonable attorney with knowledge of our holdings in United States v. Patrick,
983 F.2d 206 (11th Cir. 1993), and United States v. Ramsdale, 61 F.3d 825 (11th
Cir. 1995), would have objected. To support this claim, Mr. Nguyen called only
one witness—his trial counsel—who testified that he “may or may not have been”
aware of Patrick and Ramsdale. See D.E. at 8-12. Mr. Nguyen himself did not
testify during the hearing; he instead provided an affidavit, in which he stated that
he told his attorney to contest the drug type and quantity because the
methamphetamine was not “ice.” See D.E. at 70-1.
We agree with the district court that, on this record, Mr. Nguyen’s trial
counsel did not render deficient performance. First, our holdings in Patrick and
Ramsdale do not squarely apply here because those cases involved sentencing
errors under a guideline scheme that distinguished between d-methamphetamine
and l-methamphetamine, not methamphetamine and “ice.” See United States v.
Carroll, 6 F.3d 735, 745 (11th Cir. 1993) (“Patrick did not decide any issue related
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to purity.”). Second, we have never decided whether the designation of
methamphetamine as “ice” for sentencing purposes requires scientific testimony.
Although Patrick and Ramsdale did not involve purity issues concerning “ice,”
other circuits have permitted circumstantial testimonial evidence to sustain a
finding that the methamphetamine was “ice.” See United States v. Lugo, 702 F.3d
1086, 1089 (8th Cir. 2013); United States v. Verdin-Garcia, 516 F.3d 884, 896
(10th Cir. 2008); United States. v. Cockervill, No. 99-4634, 2000 WL 852608, at
*2-3 (4th Cir. June 28, 2000).2
III
The district court’s denial of Mr. Nguyen’s motion to vacate is affirmed.
AFFIRMED.
2
We note, as well, that Mr. Nguyen did not present any persuasive evidence at the
evidentiary hearing that the methamphetamine was not “ice.” We recognize that Mr. Nguyen
asked the district court to take judicial notice of the DEA report, but the district court did not
abuse its discretion in refusing to do so. First, only a few months within Mr. Nguyen’s
conspiracy overlapped the time frames described in the report. Second, the disclaimer in the
report itself suggested that the information referenced did not come within the meaning of Rule
201 of the Federal Rules of Evidence.
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