Rogers v. United States

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 7/26/96
TENTH CIRCUIT

DONALD STEVEN ROGERS,

Petitioner - Appellant,
v.
No. 95-6092
UNITED STATES OF AMERICA,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-92-2239-A)

Robert C. Jenkins (Charles D. Weisselberg, Dennis E. Curtis, and Carrie L. Hempel with
him on the brief), University of Southern California Law Center, Los Angeles, California,
for Defendant - Appellant.

Randel Sengel (Patrick M. Ryan and Leslie M. Maye were on the brief), U.S. Attorneys
Office, Oklahoma City, Oklahoma, for Plaintiff - Appellee.

Before HENRY, BRISCOE and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

In sentencing Donald Rogers, a federal prisoner convicted of various drug related

crimes, the district court multiplied by seven the amount of heroin he delivered for
subsequent distribution. Rogers appeals the denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence and argues that the district court improperly

enhanced the twenty-four ounces of pure heroin that he admitted delivering by the

number of times the drug was cut for resale. We affirm.

I

In 1988, a jury found Rogers guilty of engaging and conspiring to engage in

racketeering activities, possessing and conspiring to possess heroin with intent to

distribute, and traveling interstate to facilitate the conspiracy. According to the

presentence report, Rogers delivered heroin from California to Johnny Lee Sanders, who

allegedly operated a heroin distribution enterprise in Oklahoma City from 1978 to 1987.

Rogers admitted to the probation officer preparing the report that he was involved in the

heroin distribution conspiracy from January to November of 1987 and that during that

time he delivered a total of twenty-four ounces of pure heroin to Sanders.1

1
According to Rogers, trial testimony indicates that he delivered only five
ounces of heroin. Appellant’s Br. at 4; see also Appellant’s App. at 149. While the
record contains less than ten pages of the trial transcript, Appellant’s App. at 132-139,
those pages indicate that Rogers delivered more than five ounces to Evelyn Pitts’ house;
on one occasion, he delivered “five or six ounces of heroin” to Sanders at Evelyn Pitts’
house, id, at 134, and he returned to her house a second time to deliver more heroin, id. at
137.

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 Applying the sentencing guidelines,2 which tie sentences for drug offenses to the

“total weight” of the drugs involved, the probation officer recommended that Rogers be

held liable for the subsequent cuts that were made to the pure heroin he delivered to

Sanders. The probation officer found that the “amount which was distributed by Mr.

Rogers to the conspiracy increased sevenfold from 24 ounces to approximately 168

ounces.” Appellant’s Supp. App. at 11. Accordingly, the probation officer used “168

ounces of diluted heroin” to calculate Rogers’ base offense level. See id. at 12.

Rogers objected to the recommendation. He urged the court to base the sentence

on the 24 ounces of heroin he admitted delivering to Sanders. Id. at 17; Appellant’s App.

at 39. The government, on the other hand, argued that Rogers’ sentence should be based

on the total quantity of heroin distributed by Sanders’ organization over the years, thirty

kilograms. Appellant’s App. at 40-43.

The district court refused to hold Rogers responsible for the entire thirty kilograms

of heroin that had been distributed by the conspiracy. See id. at 44. The court ruled,

however, that for purposes of determining the base offense level, it was appropriate to use

a multiplier to account for cuts that were made to the pure heroin Rogers supplied. Id. at

43-44. Relying on trial testimony, the court found that raw heroin was cut at least seven

2
The probation officer determined that Rogers should be sentenced pursuant
to the Sentencing Reform Act of 1984 because the offense conduct continued until after
November 1, 1987. Appellant’s Supp. App. at 9. Rogers does not argue that the
sentencing guidelines should not apply.

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times before reaching the street. Id. Thus, in accordance with the presentence report, the

court used 168 ounces of heroin to calculate the base offense level.

Rogers’ total offense level, after deducting two points for acceptance of

responsibility, was 32, which corresponded to a sentencing range of 151 - 181 months.

The court sentenced Rogers near the bottom of that range, to 156 months for each of the

racketeering and heroin distribution offenses. The court also sentenced Rogers to 60

months for traveling interstate to facilitate the conspiracy and ordered all sentences to run

concurrently. Rogers appealed. In a previous opinion, we affirmed his convictions. See

United States v. Rogers, 921 F.2d 975 (10th Cir.), cert. denied, 498 U.S. 839 (1990).

Rogers did not challenge on direct appeal the drug quantity upon which his sentence was

based. See id. at 977 n.5.

Rogers then filed this § 2255 motion challenging his sentence. He argued that the

district court erred in multiplying the heroin he delivered by the number of times it was

cut for resale and that his attorney’s ineffective assistance provides cause for not raising

this issue on direct appeal.3 In response, the government argued that the guidelines

permitted the conversion of the pure heroin to the street quantity at the retail level, to

reflect the scale of Rogers’ participation in the offenses. The government also submitted

3
Rogers also argued below that he was denied the right to counsel during the
presentence interview. The district court rejected that claim and Rogers does not appeal
that issue.

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an affidavit of Rogers’ appellate attorney,4 stating, “I did not raise the issue of the

‘Multiplier’ in the appeal of Donald Steven Rogers because I did not feel that the issue

had merit.” Appellant’s App. at 108.

Because Rogers did not challenge the drug quantity on direct appeal, the district

court ruled he was procedurally barred from raising that claim in his § 2255 motion unless

he showed cause and prejudice. The court determined that the attorney’s deliberate

decision to forgo the claim on direct appeal was not outside the range of professionally

competent assistance required under the Sixth Amendment, given that applicable

sentencing guidelines permit sentences for drug conspiracy offenses to be based on

conduct in furtherance of a conspiracy that was known or reasonably foreseeable to the

defendant. Therefore, the attorney’s conduct did not provide cause excusing the

procedural default.

II

A § 2255 motion cannot be used “to test the legality of matters which should have

been raised on appeal.” United States v. Khan, 835 F.2d 749, 753 (10th Cir. 1987), cert.

denied, 487 U.S. 1222 (1988). To obtain relief on new claims, a § 2255 petitioner must

show “cause excusing his . . . procedural default, and . . . actual prejudice resulting from

the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982)

(quotations omitted).

4
The same attorney represented Rogers at trial and on direct appeal.

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 An attorney’s error provides cause to excuse a procedural default only if the error

amounts to constitutionally ineffective assistance of counsel. See Coleman v. Thompson,

501 U.S. 722, 753-54 (1991); see also United States v. Kissick, 69 F.3d 1048, 1054 (10th

Cir. 1995). To establish ineffective assistance of counsel, a defendant must show (1) that

his attorney’s performance was deficient and (2) that the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); United

States v. Cook, 49 F.3d 663, 665 (10th Cir. 1995).

Repentance born of a failed trial or sentencing strategy can often be turned against

defense counsel. We recognize that such criticism is often converted into a challenge

asserting inadequate assistance. Thus, we look for genuine -- rather than perceived --

ineffectiveness of counsel. Under Strickland we first examine whether “‘counsel made

errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.’” Kissick, 69 F.3d at 1054 (quoting Strickland, 466 U.S. at

687). “[A] defendant is entitled to the exercise [of] the skill, judgment and diligence of a

reasonably competent defense attorney.” Id. (quotation and citation omitted). “Judicial

scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at

689. “A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Id. We “must indulge a strong presumption that counsel’s conduct falls within the wide

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range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Under the prejudice aspect of Strickland we inquire whether “‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” Kissick, 69 F.3d at 1055 (quoting Strickland, 466 U.S. at

694). “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. “However, a court may not set aside a conviction

or a sentence solely because the outcome would have been different absent counsel’s

deficient performance.” Kissick, 69 F.3d at 1055. “Instead, in order to establish the

required prejudice, a defendant must demonstrate that counsel’s deficient performance

rendered the proceeding ‘fundamentally unfair or unreliable.’” Id. (quoting Lockhart v.

Fretwell, 113 S. Ct. 838, 842-43 (1993)).

“In a § 2255 action, we review the district court’s legal conclusions regarding

ineffective assistance of counsel claims de novo.” Cook, 49 F.3d at 665. We also review

the district court’s interpretation and application of the sentencing guidelines de novo. Id.

III

Rogers was sentenced in November 1988, barely one year after the sentencing

guidelines took effect. The 1988 guidelines required the district court to set Rogers’ base

offense level at the “level specified in the Drug Quantity Table.” USSG § 2D1.1(a)(3)

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(1988). Similar to the current guidelines, the 1988 Drug Quantity Table established

sixteen base offense levels, based on the “Controlled Substances and Quantity” involved

in the drug offense. Id., Drug Quantity Table. A footnote to the Drug Quantity Table

stated, in relevant part: “The scale amounts for all controlled substances refer to the total

weight of the controlled substance. Consistent with the provisions of the Anti-Drug

Abuse Act, if any mixture of a compound contains any detectable amount of a controlled

substance, the entire amount of the mixture or compound shall be considered in

measuring the quantity.” § 2D1.1, Drug Quantity Table, note * (1988).

At Rogers’ sentencing hearing, the district court grappled with the quantity of

heroin that should be used to determine the base offense level, and concluded that “the

street quantity is the quantity that the Court will use for purposes of resolving any

differences here and not the raw or uncut heroin, and there is ample testimony to the

effect that a cut of seven is a reasonable figure.” Sentencing Tr., Appellant’s App. at 43-

44. The district court added, however, “And I think that the street quantity is clearly what

is referred to, for example, in illustrative cases given in the commentary to the rules here,

some appear on page 241 of the version of the guidelines that I’m using, that street

quantity at the retail level is the reference.” Id. at 44.

Unclear about the district court’s reason for multiplying the pure heroin by the

number of times it was cut for resale, Rogers asked whether the court had made a specific

finding about the use of the multiplier. The district court answered, “Yes, that the street

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quantity is the pertinent amount for purposes of the [Drug Quantity] table. . . . And that

finding is based in part upon the examples given, which to me are quite clearly in

reference to street amounts.” Id. at 56.

The examples to which the court referred are those that follow application note 10,

in the commentary to § 2D1.1 of the 1988 guidelines. The examples show how to use the

Drug Equivalency Table to arrive at a base offense level. The Drug Equivalency Table

provides conversion factors to be used when two or more controlled substances must be

combined to arrive at a single base offense level, or when the offense involves a

controlled substance not listed in the Drug Quantity Table. Although one of the examples

involves cut controlled substances, and the others involve rather large quantities, none of

the examples indicate that pure drugs should be converted to the street quantity at the

retail level before selecting the base offense level from the Drug Quantity Table. The

district court appears to have incorrectly interpreted the examples to require conversion of

pure drugs to the street quantity at the retail level.

We are not convinced, however, that the sentence imposed by the district court was

erroneous under the facts of this case. In a drug conspiracy case, such as this one, “a

defendant’s sentence is not based merely upon the amount with which the defendant dealt

personally.” United States v. Edwards, 69 F.3d 419, 438 (10th Cir. 1995) (citations and

quotations omitted), cert. denied, 64 U.S.L.W. 3821 (June 10, 1996). Instead, the

guidelines require the sentencing court to consider relevant conduct of co-conspirators in

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setting the base offense level. USSG § 1B1.3(a)(1), application note 1 (1988); USSG §

2D1.4, application note 1 (1988); USSG § 1B1.3(a)(1)(B) (1995). Thus, under certain

circumstances, the guidelines attribute a co-conspirator’s cuts to or conversion of a

controlled substance to a defendant. See, e.g., United States v. Robertson, 45 F.3d 1423,

1444 (10th Cir.), cert. denied, 115 S. Ct. 2258, 115 S. Ct. 2259, 116 S. Ct. 133 (1995).

When Rogers was sentenced, the guidelines required the sentencing court to

account for “conduct in furtherance of the conspiracy that was known to or was

reasonably foreseeable by the defendant.” § 1B1.3, application note 1 (1988). Regarding

conspiracies to commit drug offenses, the 1988 guidelines also provided:

If the defendant is convicted of a conspiracy that includes transactions in
controlled substances in addition to those that are the subject of substantive
counts of conviction, each conspiracy transaction shall be included with
those of the substantive counts of conviction to determine scale. . . . If the
defendant is convicted of conspiracy, the sentence should be imposed only
on the basis of the defendant’s conduct or the conduct of co-conspirators in
furtherance of the conspiracy that was known to the defendant or was
reasonably foreseeable.

USSG § 2D1.4, application note 1 (1988).

Although the applicable guidelines sections required the district court to sentence

Rogers for reasonably foreseeable conduct in furtherance of the conspiracy, the district

court made no explicit findings in this regard. The court did imply, however, that it had

other reasons for multiplying the pure heroin by the number of times it was cut, other than

its determination that the examples in the guidelines referred to street quantities. See

Sentencing Tr., Appellant’s App. at 56 (stating that the finding that the street quantity is

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the pertinent amount for purposes of the Drug Quantity Table “is based in part upon the

examples given” (emphasis added)).

Ruling on Rogers’ § 2255 motion, the district court drew this conclusion from the

record: “Although [Rogers] may not have personally participated in cutting or selling the

heroin in its diluted ‘street quantity’ form, the later drug sales were a foreseeable result of

his drug sales and were well within the scope of [his] agreement to provide heroin for

subsequent distribution in multiplied form.” Appellant’s App. at 161. The district court

held that the attorney’s decision not to raise the multiplier argument on direct appeal was

not unreasonable, given that the guidelines “entitled” the sentencing court to base the

defendant’s sentence on the amount of drugs involved in foreseeable transactions in

furtherance of the conspiracy.

We agree. Although the sentencing court may have incorrectly read the examples

in the guidelines to require automatic conversion of pure drugs to street quantities, the

guidelines not only permitted, but required, the court to account for foreseeable cuts to the

heroin in furtherance of the conspiracy. The district court has now determined that the

record shows that all cuts to the heroin were foreseeable and within the scope of Rogers’

agreement to participate in the conspiracy. Under these circumstances, Rogers’ attorney

had little to gain by raising the multiplier issue on appeal. Thus, we conclude that

Rogers’ attorney did not provide constitutionally ineffective assistance by failing to raise

this error on direct appeal.

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 Rogers claims that the guidelines would not have allowed the sentencing court to

treat the co-conspirators’ cuts to the heroin as relevant conduct. He argues that although

the cuts were foreseeable, they were not within the scope of any activity he agreed to

jointly undertake. We cannot determine from the small part of the trial transcript that has

been included in the record on appeal whether the cuts were within the scope of Rogers’

agreement to participate in the conspiracy. Since Rogers challenges the district court’s

factual finding that “cutting or selling the heroin in its diluted ‘street quantity’ form . . .

[was] well within the scope of [his] agreement to provide heroin for subsequent

distribution in multiplied form,” it is not unreasonable to expect Rogers to have included

in the record on appeal all evidence relevant to that finding if he wishes to challenge it.

See Dikeman v. National Educators, Inc., 81 F.3d 949, 955 (10th Cir. 1996); Deines v.

Vermeer Mfg. Co., 969 F.2d 977, 978-79 (10th Cir. 1992). Without an adequate record,

we will not set aside the district court’s facially rational finding that the cuts to the heroin

were within the scope of Rogers’ agreement to participate in the drug distribution

conspiracy.

Affirmed.

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