United States v. Stewart

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-50714
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY EUGENE STEWART,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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March 24, 2000
Before WIENER and STEWART, Circuit Judges.1
PER CURIAM:
Defendant-Appellant Bobby Stewart has appealed the denial of

his motion to vacate, set aside, or correct sentence pursuant to 28

U.S.C. § 2255. He argues that the district court erred in denying

his claim of ineffective assistance of counsel based on his

attorney's failure to question the type of methamphetamine used at

his sentencing. Specifically, he argues that the PSR overstated

the amount of methamphetamine and wrongly concluded that the

methamphetamine found was the more severely punishable d-

methamphetamine instead of the less severely punishable l-

methamphetamine.

1
Senior District Judge John M. Shaw of the Western District of
Louisiana was a member of the panel who heard oral argument on this
case. Because of his death on December 24, 1999, he did not
participate in this decision. This appeal has been decided by a
quorum pursuant to 28 U.S.C. §46(d).
 To succeed in a § 2255 motion based on ineffective assistance

of counsel, the movant must prove that his attorney's

representation was deficient and that the movant was prejudiced by

his deficient representation. Failure to meet either the deficient

performance prong or the prejudice prong will defeat a claim for

ineffective assistance of counsel. A court need not address both

components of an ineffective assistance of counsel claim if the

movant makes an insufficient showing on one. In the context of

sentencing, prejudice means that but for his counsel's error, his

sentence would have been significantly less harsh.

Stewart has failed to show that he was prejudiced by his

counsel's alleged ineffective assistance. See United States v.

Acklen, 97 F. 3d 750, 751 (5th Cir. 1996) (holding that district

court correctly found that movant failed to demonstrate prejudice

when he failed to show at evidentiary hearing that he produced l-

methamphetamine). The judgment of the district court is affirmed.

Stewart's motion for release on bond pending resentencing is denied

as moot.

AFFIRMED; MOTION DENIED AS MOOT.