[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 25, 2006
No. 06-10841 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
02-00638-CV-T-N
99-00052-CR-T-N
CLINT GRIFFIN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(October 25, 2006)
Before ANDERSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Clint Griffin, a federal prisoner proceeding pro se, challenges the district
court’s denial of his motion to vacate, set aside, or correct his sentence, brought
pursuant to 28 U.S.C. § 2255. Griffin argues that both his trial and appellate
counsel were ineffective for failing to appropriately challenge the drug quantity
attributed to him by the sentencing court. He also asserts that the district court, in
reviewing his § 2255 motion, erred in attributing an additional 125 grams of
cocaine base to him when determining that he was not prejudiced by trial counsel’s
failure to object. Because Griffin cannot show under the two-prong test of
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064, 80 L.Ed. 2d
674 (1984), that his trial and appellate counsel were constitutionally ineffective, we
affirm the district court’s denial of Griffin’s § 2255 motion.
BACKGROUND
Griffin was convicted in federal court of conspiracy to possess with intent to
distribute cocaine and cocaine base, distribution of cocaine, and distribution of
cocaine base. Griffin was sentenced to 151 months of imprisonment.
At trial, witness Calvin Massey testified that he bought 125 grams of what
he believed was cocaine base from Griffin prior to the conspiracy. At sentencing,
Griffin’s trial counsel objected to the drug quantity attributed to Griffin. He argued
that 65.67 grams of cocaine base should not be attributed because Griffin’s co-
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defendants were not convicted of these charges. The trial court overruled the
objection based on the Sentencing Guidelines (“Guidelines”) definition of relevant
conduct. Including this amount in the totals, the sentencing court found 153.6
grams of cocaine base and 215.7 grams of powder cocaine attributable to Griffin.
This gave Griffin a base offense level of 34, with a criminal history category of 1.
The applicable Guidelines range was 151 to 188 months imprisonment. The court
sentenced Griffin to the minimum term of 151 months.
On direct appeal, Griffin adopted the briefs and legal arguments of his co-
defendants. In addition, he argued that motion for a mistrial should have been
granted because the court admitted an incriminating extrajudicial statement made
by a co-defendant, Patrick Howard, in violation of Griffin’s Sixth Amendment
right to confrontation. Griffin also argued that a prosecutor’s comment during
closing argument was prejudicial to the point of reversal. Appellate counsel failed
to expressly argue the sentencing court’s drug calculation was in error; however,
by adopting the co-defendants’ briefs, the issue was raised.
In an unpublished opinion, United States v. Howard, No 99-13258 (11th Cir.
June 18, 2001), we affirmed Griffin’s conviction and sentence. In the same
opinion, we vacated co-defendant Howard’s sentence finding that the district court
erred in determining the drug quantity attributable to Howard’s relevant conduct.
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We did not expressly examine whether the record supported the drug quantity
findings as they pertained to Griffin.
Griffin then filed a § 2255 motion and argued in his supporting
memorandum of law that his Sixth Amendment right to effective assistance of
counsel was violated by his trial and appellate counsel failure to challenge the drug
quantity attributed to him for the purposes of sentencing. In response, the
government argued that there was no performance deficiency because trial counsel
did challenge the quantity. The government further argued that the Strickland
standard of deficiency and prejudice had not been met. Griffin filed a reply in
which he noted that, although trial counsel did object to the drug quantities
attributed to him, counsel objected on different grounds than those used by this
court to vacate his co-defendant’s sentence. Further he argued that his appellate
counsel was ineffective for failing to raise the successful argument on appeal.
A magistrate judge reviewed Griffin’s § 2255 motion and made an
independent calculation of the drug quantities attributable to Griffin. In doing so,
she followed our opinion in Howard and reduced the amount attributable to
Griffin. However the magistrate’s review of the record found sufficient evidence of
drug quantities to support a base level of 34. The magistrate recommended the
denial of the § 2255 motion. Although Griffin objected to the report, the district
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court overruled his objections and adopted the report.
We granted a certificate of appealability on the issue of “whether the district
court erred by finding that the appellant’s trial and appellate counsel were not
ineffective under Strickland for failing challenge the sentencing court’s
determination of the quantity of drugs attributable to him for the purpose of
sentencing.”
STANDARD OF REVIEW
We review “the district court’s findings of fact for clear error and its legal
conclusions and mixed questions of law and fact de novo.” Michael v. Crosby, 430
F.3d 1310, 1318 (11th Cir. 2005), cert. denied, 126 S.Ct. 2025 (2006). “Whether a
particular decision by counsel was a tactical one is a question of fact,” while the
reasonableness of a particular tactical decision is a question of law reviewed de
novo. Holsomback v. White, 133 F.3d 1382, 1386-87 (11th Cir. 1998).
DISCUSSION
Griffin argues that his trial and appellate counsel were ineffective for failing
to challenge the drug quantity attributed to him. To demonstrate ineffective
assistance of counsel, the defendant must show (1) that counsel’s performance was
deficient and (2) that the same deficiency results in prejudice to the defendant. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. “Both showings are necessary for
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any relief; failure to establish either is fatal and makes it unnecessary to consider
the other.” Rutherford v. Crosby, 385 F.3d 1300, 1308-09 (11th Cir. 2004). To
satisfy the first prong, counsel’s performance must fall “below an objective
standard of reasonableness.” Chandler v. United States, 218 F.3d 1305, 1312 (11th
Cir. 2000)(quoting Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2473, 91
L.Ed.2d 144 (1986)). We evaluate the reasonableness from counsel’s perspective
at the time of the alleged error in light of all circumstances of the case. See
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. To establish prejudice, the
defendant must show that but for his counsel’s deficient performance the result of
the proceedings would have been different. Id. at 694, 104 S. Ct. at 2068.
Griffin has not shown his appellate counsel’s performance was deficient.
Griffin argues that counsel was ineffective because he failed to challenge the drug
quantities attributed to Griffin. Although appellate counsel did not expressly argue
this issue, he did adopt the arguments of the co-defendants which included this
issue, thereby raising the issue on appeal. Therefore, Griffin’s ineffective
assistance of counsel claim against his appellate counsel fails the first prong of the
Strickland test.
Griffin’s claim that trial counsel was ineffective similarly fails. While trial
counsel did not object to the calculation of the base offense level on the same
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grounds successful for Howard on appeal, he did object to the calculation on other
grounds. It is not enough to show that there was an omission or that counsel could
have done more; Griffin must show that this omission fell below the range of
acceptable professional assistance. See Chandler, 218 F.3d. at 1313.
Nevertheless, assuming counsel was deficient, Griffin has not shown
prejudice resulted. When the magistrate recalculated the sentencing range, Griffin
still had a base level of 34 even given the benefit of our Howard opinion, because
the district court attributed an additional 125 grams of cocaine base to Griffin
based on Massey’s trial testimony. The attribution of the 125 grams is a finding of
fact reviewed for clear error. See Michael, 430 F.3d at 1318. While “sentencing
cannot be based on calculations of drug quantities that are merely speculative,” it
“may be based on fair, accurate, and conservative estimates.” United States v.
Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998) (per curiam). In determining
amounts, the court has wide discretion to consider relevant information provided
that information has sufficient indicia of reliability and the defendant has the
opportunity to challenge evidence against him. United States v. Query, 928 F.2d
383, 384-85 (11th Cir. 1991). The district court relied on Massey’s testimony
regarding the quantity and type of drug purchased from Griffin. It cannot be said
that this was speculative evidence nor was the finding prejudiced by trial counsel’s
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failure to object. Because there was sufficient evidence to support this finding, the
district court did not clearly err. This additional 125 grams of cocaine base
supports the finding of a base offense level of 34 even if an objection based on
relevant conduct had been successful. Therefore, Griffin cannot show that a
different outcome was possible had his trial counsel raised this specific argument.
Because he is unable to show prejudice under the Strickland standard, this claim
also fails.
Based on a review of the record and the parties’ briefs, we discern no
reversible error. Accordingly we affirm the district court’s denial of Griffin’s pro
se § 2255 motion.
AFFIRMED.
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