UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30490
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT JOSEPH KNIGHT,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(93-CA-2148)
February 13, 1996
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:1
Appellant Robert Joseph Knight ("Knight") appeals the district
court's denial of his 28 U.S.C. § 2255 motion. We affirm.
FACTS AND DISTRICT COURT PROCEEDINGS
Officers executing a search warrant at a house outside
Lafayette, Louisiana, found a chemical distillation unit,
glassware, chemistry textbooks, handwritten "recipes" for
1
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
phenylacetone and methamphetamine, and chloracetone (a precursor
chemical to phenylacetone). Knight was arrested during the raid.
Knight's briefcase contained drug paraphernalia and more
handwritten instructions for manufacturing methamphetamine. No
methamphetamine was found.
Knight, Juan Lee Lopez, Leslie McBride, and Stephen Sheets
were charged with conspiracy to manufacture phenylacetone and
methamphetamine and possession of a firearm in relation to a
narcotics offense. McBride and Sheets pleaded guilty to conspiracy
and testified against Knight and Lopez.
McBride and Sheets testified that Knight and Lopez had
solicited McBride (who had some knowledge of chemistry) to "cook"
approximately six ounces of methamphetamine. Sheets agreed to
allow McBride to "cook" the substance at Sheets' house. Lopez
provided the money to purchase the necessary chemicals and
glassware and agreed to distribute the finished methamphetamine.
Knight provided the "recipe" for making methamphetamine.
Government chemist Leo Polte testified that the illicit
laboratory had the capacity to manufacture approximately 150 grams
or six ounces of methamphetamine.2 The jury convicted Knight and
Lopez of conspiracy to manufacture phenylacetone and
methamphetamine.
The probation officer calculated that Knight's base offense
level was 26 because the offense involved more than 100 but less
than 400 grams of methamphetamine. Knight objected based on the
2
Six ounces is actually 186.6 grams.
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fact that no drugs had been seized. The district court held that
it was proper to estimate the quantity of drugs involved in the
conspiracy based on the capacity of the laboratory. The court then
accepted the probation officer's determination that Knight's base
offense level was 26. The district court granted a two-level
reduction for acceptance of responsibility and imposed a 77-month
sentence.
On direct appeal, this court affirmed the district court's
determination of the quantity of drugs involved in the offense. We
affirmed the convictions but vacated Knight's sentence and remanded
for a determination of whether he was entitled to a reduction in
offense level for acceptance of responsibility. On remand, the
district court found that Knight had not accepted responsibility
and sentenced Knight to a term of 92-months' imprisonment. This
court affirmed the sentence.
Knight filed an amended 28 U.S.C. § 2255 motion alleging (1)
that counsel was ineffective at sentencing for failing to challenge
the Government's proof of the type of methamphetamine involved in
the offense; (2) that his sentence violates principles of due
process because the Government failed to prove that the conspiracy
involved d-methamphetamine as opposed to l-methamphetamine; and (3)
that he is entitled to be resentenced based upon the retroactive
application of an amendment to the application notes to U.S.S.G. §
2D1.1.
A magistrate judge determined that Knight was not entitled to
§ 2255 relief and recommended that the district court deny the
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motion. In untimely objections to the magistrate judge's report,
Knight argued, inter alia, that the magistrate judge had erred by
rejecting his argument that counsel had been ineffective at
sentencing for failing to object to the lack of proof that the
conspiracy involved d-methamphetamine. After an independent review
of the record, the district court accepted the findings and
conclusions of the magistrate judge and denied the § 2255 motion.
The court did not address Knight's objections to the magistrate
judge's recommendation.
RETROACTIVE APPLICATION OF GUIDELINE AMENDMENTS
Knight argues that he is entitled to have his sentence
recomputed based upon the retroactive application of Amendment 484
to § 2D1.1. Amendment 484 became effective November 1, 1993, and
it applies retroactively. See United States v. Towe, 26 F.3d 614,
616 (5th Cir. 1994); U.S.S.G. § 1B1.10(c). Knight was resentenced
in August 1992, and this court affirmed his sentence in June 1993.
Because Amendment 484 had not become effective when Knight was
resentenced, Knight should have raised this argument in a motion
pursuant to 18 U.S.C. § 3582(c)(2), rather than a § 2255 motion.
See Towe, 26 F.3d at 616. Section 3582(c)(2) allows a court to
reduce a defendant's sentence if the term of imprisonment was based
on a guideline range that subsequently has been lowered and such a
reduction would be consistent with the applicable policy statements
in the guidelines. Id. The district court recognized that a §
2255 motion was not the proper vehicle to raise this issue but,
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"for the sake of completeness," it addressed and rejected the
merits of Knight's argument.
In the interest of judicial economy and because the Government
does not object and the argument is obviously without merit, we
will proceed as if Knight had raised this argument in a §
3582(c)(2) motion. See United States v. Mimms, 43 F.3d 217, 219-20
(5th Cir. 1995).
Reduction of a defendant's sentence pursuant to § 3582(c)(2)
is discretionary, and this court reviews a district court's refusal
to lower a defendant's sentence for abuse of discretion. United
States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994). The district
court's factual findings in a § 3582(c)(2) proceeding are reviewed
for clear error. Mimms, 43 F.3d at 220.
Amendment 484 provides that waste materials should be excluded
in determining the quantity of a controlled substance on which the
defendant's sentence is based. See United States v. Allison, 63
F.3d 350, 351-52 (5th Cir.), cert. denied, 116 S. Ct. 405 (1995).
Although Amendment 484 applies retroactively, it is irrelevant to
Knight's sentence because his sentence was based, not on an actual
quantity of drugs which may have contained waste materials, but on
the estimated production capacity of the illicit laboratory. Id.
at 352-53.
STANDARD OF REVIEW OF DENIAL OF SECTION 2255 MOTION
Section 2255 identifies four specific grounds upon which a
federal prisoner may move to vacate, set aside, or correct his
sentence: the sentence was imposed in violation of the
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Constitution or laws of the United States; the court was without
jurisdiction to impose the sentence; the sentence exceeds the
statutory maximum sentence; or the sentence is "otherwise subject
to collateral attack." 28 U.S.C. § 2255; see United States v.
Cates, 952 F.2d 149, 151 (5th Cir.), cert. denied, 504 U.S. 962
(1992).
A defendant who has been convicted and has exhausted or waived
his right to appeal is presumed to have been "fairly and finally
convicted." United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.
1991) (en banc) (citation omitted), cert. denied, 502 U.S. 1076
(1992). Therefore, a defendant who raises a constitutional or
jurisdictional issue for the first time on collateral review must
show "both `cause' for his procedural default, and `actual
prejudice' resulting from the error." Id. at 232 (quoting Frady,
456 U.S. at 168). The only exception to the cause and prejudice
test is the "extraordinary case . . . in which a constitutional
violation has probably resulted in the conviction of one who is
actually innocent." Id. at 232 (internal quotations and citation
omitted). The Government must invoke the procedural bar in the
district court, however. United States v. Drobny, 955 F.2d 990,
994-95 (5th Cir. 1992). The Government argued in the district
court that Knight's motion is procedurally barred.
In reviewing a district court's denial of a § 2255 motion, we
review the district court's factual findings for clear error and we
review questions of law de novo. United States v. Seyfert, 67 F.3d
544, 546 (5th Cir. 1995).
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DUE PROCESS
Knight contends that his sentence violates principles of due
process because the Government failed to prove that the object of
the conspiracy was d-methamphetamine rather than l-
methamphetamine.3 Knight could have, but did not raise this
argument on direct appeal. Although he couches his argument as a
due process claim, this court has determined that it is not an
issue of constitutional or jurisdictional magnitude and, thus, may
not be raised for the first time in a § 2255 motion. United States
v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995); United States v.
Acklen, 47 F.3d 739, 742 n.4 (5th Cir. 1995).
Because Knight's due process claim does not fall within one of
the categories of claims cognizable on federal habeas corpus, we
need not reach the cause and prejudice analysis.
INEFFECTIVE ASSISTANCE OF COUNSEL
Knight contends that his counsel was ineffective at sentencing
for failing to raise the issue of whether he should be sentenced
based on d-methamphetamine or l-methamphetamine. The district
court denied relief on the dual grounds that Knight had failed to
establish that his counsel's performance was objectively
unreasonable or that he would have received a lesser sentence if
counsel had questioned the type of methamphetamine involved in the
offense. The court discussed the difference between d-
3
For sentencing purposes, the guidelines treat offenses
involving d-methamphetamine much more severely than those
involving l-methamphetamine. See United States v. Bogusz, 43
F.3d 82, 88 (3d Cir. 1994), cert. denied, 115 S. Ct. 1812 (1995).
7
methamphetamine and l-methamphetamine, citing United States v.
Lande, 40 F.3d 329 (10th Cir. 1994), cert. denied, 115 S. Ct. 1988
(1995). The Tenth Circuit concluded that clandestine laboratories
are generally designed to produce d-methamphetamine because l-
methamphetamine has little or no physiological effect. The court
determined that there was "no reasonable probability that the
methamphetamine laboratory in question was in the business of
manufacturing an inert drug with little or no street value."
This court has noted that l-methamphetamine "`produces little
or no physiological effect when ingested,'" Acklen, 47 F.3d at 742,
(quoting United States v. Bogusz, 43 F.3d 82, 98 (3d Cir. 1994)),
and "question[ed] why anyone would set up a laboratory to produce
l-methamphetamine," Allison, 63 F.3d at 353 n.7. However, in
Acklen, we held that counsel's failure at sentencing to challenge
the type of methamphetamine involved in the offense was not
objectively reasonable as a matter of law. Acklen, 47 F.3d at 743.
Drugs were seized from Acklen's laboratory, and Acklen alleged that
a lab report not introduced into evidence identified the relevant
isomer of methamphetamine. Id. at 741-42. The court stated that
"merely reading the commentary" to the sentencing guidelines would
have alerted counsel to the fact that this issue could have a
"potentially significant impact on sentencing."4 Id. In Acklen,
the court remanded to give the defendant an opportunity to "tender
4
When both Acklen and Knight were sentenced, this court had
not yet addressed the issue in a published opinion, but at least
one other circuit had done so. See Acklen, 47 F.3d at 741, 743 &
n.7.
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some specific, verified basis or evidence, beyond his mere naked
assertion, that the drug was in fact l-methamphetamine." Id. at
744. The court stated that such a showing could entitle Acklen to
discovery and an evidentiary hearing on his ineffective-assistance-
of-counsel claim. Id.
No methamphetamine was actually seized in this case;
instead, the court sentenced Knight based on a chemist's estimate
of the production capacity of his laboratory which did not specify
which type of methamphetamine the laboratory would have produced.
While Knight has stated a cognizable constitutional claim for
ineffective assistance of counsel, we must affirm the denial of
Knight's § 2255 motion because Knight cannot establish that he was
prejudiced by counsel's failure to object to the lack of proof of
the type of methamphetamine involved. See United States v. Walker,
68 F.3d 931, 933-34 (5th Cir. 1995) (§ 2255 case affirmed on the
ground that the defendant was unable as a matter of law to show
prejudice from counsel's failure to object to an allegedly
incorrect laboratory report). The district court's determination
that it was implicit that the chemist's testimony referred to d-
methamphetamine because there is no reason for an illicit
laboratory to manufacture l-methamphetamine is not clearly
erroneous. See Allison, 63 F.3d at 353 n.7; Acklen, 47 F.3d at
742; see also Lande, 40 F.3d at 330 (citing expert testimony that
in 26 combined years of experience, chemists had never encountered
a clandestine laboratory designed to produce pure l-
methamphetamine). Therefore, counsel's failure to raise the d-
9
methamphetamine/l-methamphetamine sentencing issue did not
prejudice Knight.
CONCLUSION
For the foregoing reasons, we affirm the district court's
denial of Knight's § 2255 motion.
AFFIRMED.
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