[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 19, 2008
No. 07-11268 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20514-CV-ASG
GREGORY RANDOLPH BERRY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 19, 2008)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Gregory Berry appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate his conviction and life sentence for distributing cocaine base, in
violation of 21 U.S.C. § 841. The district court granted a certificate of
appealability on one issue: whether Berry’s trial counsel was constitutionally
deficient for failing to force the government to establish the substance he
distributed was crack cocaine and not cocaine base before, during, or following
trial.
“In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal
conclusions de novo and factual findings for clear error. A claim of ineffective
assistance of counsel is a mixed question of law and fact that we review de novo.”
Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008) (citation omitted).
“For a factual finding to be clearly erroneous, this court, after reviewing all of the
evidence, must be left with a definite and firm conviction that a mistake has been
committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.
2004) (quotations omitted).
The U.S. Constitution provides “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” U.S.
Const. Amend. VI. The benchmark for judging a claim of ineffective assistance of
counsel is whether counsel’s performance so undermined the proper functioning of
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the adversarial process the trial cannot be relied on as having produced a just
result. Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984). This showing has
two components: first, the prisoner must show counsel’s performance was
deficient; and second, the prisoner must establish the deficient performance
prejudiced the defense. Id.
Under the deficient performance prong of the Strickland test, the prisoner
must show counsel made errors so serious he was not functioning as the counsel
guaranteed by the Sixth Amendment. Id. There is a strong presumption that
counsel’s conduct fell within the range of reasonable professional assistance. Id. at
2065. Under the prejudice prong, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 2068.
Under 21 U.S.C. § 841(b)(1)(A)(iii), an individual who distributes 50 grams
or more of a substance containing “cocaine base,” after 2 or more prior felony drug
offenses have become final shall be sentenced to a mandatory term of life
imprisonment. The Sentencing Guidelines state, “‘[c]ocaine base,’ for the
purposes of this guideline, means ‘crack.’ ‘Crack’ is the street name for a form of
cocaine base, usually prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form.” U.S.S.G.
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§ 2D1.1(c), note D. We have held the term “cocaine base” in 21 U.S.C. § 960(b)
should only include crack cocaine because Congress did not explicitly define the
term in the statute and allowed that definition of “cocaine base” to be promulgated
in the Guidelines. United States v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir.
1994) (looking to U.S.S.G. § 2D1.1(c), note D).
The evidence at Berry’s criminal trial demonstrated the substance he
distributed was crack cocaine. Drug Enforcement Agent Steven Gilbert testified
the substance appeared to be crack cocaine, and confidential informant Dwain
Mallary stated the drugs Berry gave him were crack cocaine. Gilbert also testified
he monitored a telephone conversation during which Berry discussed a prior crack
cocaine sale and indicated he had more crack cocaine. Furthermore, at the
evidentiary hearing, Dr. Terry Hall and Walter Rodriguez indicated the DEA lab
report’s description of the cocaine was consistent with a description of crack
cocaine. Accordingly, the magistrate’s finding the substance at issue was crack
cocaine was not clearly erroneous. See Devine, 520 F.3d at 1287.
Berry is unable to overcome the strong presumption that counsel’s conduct
fell within the range of reasonable professional assistance. His counsel’s failure to
assert an argument the evidence demonstrated to be false is not deficient
performance. Therefore, as the magistrate judge found, Berry cannot show he was
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prejudiced by his trial counsel’s failure to challenge whether the substance he
distributed was crack cocaine, because the evidence demonstrated the substance
was crack cocaine. Likewise, Berry’s counsel’s confusion regarding crack cocaine
does not change the result because the evidence shows that any challenge to the
identification of the drugs as crack cocaine would have failed. Accordingly,
Berry’s claim of ineffective assistance of counsel fails, and we affirm the district
court’s denial of his § 2255 motion as to this claim.
AFFIRMED.
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