FILED
United States Court of Appeals
Tenth Circuit
August 30, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-1551
(D.C. Nos. 1:08-CV-00207-JLK and
RICHARD POWELL, 1:04-CR-00514-WYD-2)
(D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.
After a trial in federal court, Richard Powell was convicted of various drug
charges. Finding that Mr. Powell already had “two or more prior convictions for
a felony drug offense,” the district court sentenced Mr. Powell to a mandatory life
sentence. 21 U.S.C. § 841(b)(1)(A). To support its finding that Mr. Powell
previously had been convicted of two or more felony drug offenses, the court
*
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) and 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not binding precedent except under the doctrines of law of the case, res judicata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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
pointed to one prior federal conviction and two California state convictions (the
first for transporting cocaine, the other for possessing it). On direct appeal, Mr.
Powell challenged his convictions, but largely without success. See United States
v. Powell, 220 F. App’x 805 (10th Cir. 2007) (unpublished).
Then Mr. Powell brought a 28 U.S.C. § 2255 motion. In it, Mr. Powell
alleged that his counsel on direct appeal provided constitutionally ineffective
assistance, in violation of the Sixth Amendment, by failing to contest his
eligibility for a mandatory life sentence under § 841. To be sure, Mr. Powell
admitted, he had one prior drug felony conviction — stemming from his prior
federal drug conviction. But he disputed that either of his state drug convictions
qualified as felony convictions for purposes of qualifying for § 841’s mandatory
life sentence. In Mr. Powell’s view, his appellate counsel provided
constitutionally ineffective assistance by failing to pursue this line of argument.
The district court disagreed and denied Mr. Powell’s § 2255 motion.
In response to this ruling, Mr. Powell sought from us a certificate of
appealability (“COA”) in order to challenge the district court’s decision.
Believing Mr. Powell’s claim “deserve[d] encouragement to proceed further,” we
granted a COA to resolve the question whether at least one of Mr. Powell’s state
convictions qualified as a felony to justify his mandatory life sentence. See Order
Granting COA (June 1, 2011).
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We now hold the answer is yes. In doing so, we need not resolve whether a
federal court is bound by what state law calls a “felony” or “misdemeanor.”
Compare 21 U.S.C. § 802(13) (suggesting yes), with 21 U.S.C. § 802(44)
(suggesting no). Either way, at least one of Mr. Powell’s state convictions — for
transporting cocaine (conviction number A791897) — clearly qualifies as a felony
for purposes of § 841. California law deems that conviction a felony because his
crime was punishable by imprisonment in state jail. See Cal. Penal Code § 17(a).
And unlike some other types of convictions (rightly known as “wobblers”), Mr.
Powell’s conviction wasn’t eligible for conversion to a misdemeanor — as both
parties acknowledge. See People v. Feyrer, 226 P.3d 998, 1008-09 (Cal. 2010);
People v. Mauch, 77 Cal. Rptr. 3d 751, 754-55 (Cal. Ct. App. 2008). Federal law
treats this conviction as a felony, too, given that the crime was punishable by
more than a year of imprisonment. See 21 U.S.C. § 802(44); Cal. Health & Safety
Code § 11352 (1986). Under any scenario, then, Mr. Powell was clearly eligible
for the mandatory life sentence he received. And because of this he cannot show
either that his appellate counsel performed deficiently by failing to argue
otherwise, or that he was in any way prejudiced by counsel’s failure to do so. See
United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006) (counsel’s failure to
raise meritless issue is not ineffective assistance).
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The judgment of the district court is affirmed. Mr. Powell’s motion to
supplement his brief is granted.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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