United States v. Brazier, 10th Cir. (1998)
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Scribd Government DocsUnited States v. Brazier, 10th Cir. (1998)
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UNITED STATES COURT OF APPEALS
United States Court of Appeals
Tenth Circuit
TENTH CIRCUIT
JUN 9 1998
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 97-3390
(D.C. No. 97-3186-SAC)
ARTURO BRAZIER, a/k/a Arturo
Gooding,
(D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining Appellants brief and the 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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
Appellant, Mr. Arturo Brazier, was convicted of conspiracy to possess with
intent to distribute in excess of five kilograms of cocaine hydrochloride and/or in
excess of fifty grams of cocaine base (crack cocaine), possession with the intent
to distribute one kilogram of cocaine hydrochloride, and use of a communications
facility to facilitate possession with intent to distribute cocaine. Appellant was
sentenced to 188 months incarceration, and his conviction and sentence were
affirmed on appeal. See United States v. Brazier, 85 F.3d 641 (Table), 1996 WL
218605 (10th Cir. May 1, 1996).
After his conviction was affirmed, Appellant filed a motion to vacate his
sentence pursuant to 28 U.S.C. 2255, contending that he was denied the
effective assistance of counsel guaranteed by the Sixth Amendment to the United
States Constitution. Appellants petition alleges that both his trial counsel and
appellate counsel were constitutionally ineffective because they did not raise the
issue of whether the government proved that his crimes involved crack cocaine.
Appellant contends that his counsels failure to raise this issue prejudiced him by
subjecting him to the harsher sentence imposed upon those convicted of crimes
involving crack cocaine. The district court denied the section 2255 motion. See
United States v. Brazier, Nos. 93-40003-08-SAC & 97-3186-SAC, 1997 WL
833293, at *7 (D. Kan. Dec. 11, 1997). The district court also denied Appellant a
certificate of appealability. See United States v. Brazier, Nos. 93-40003-08-SAC
-2-
& 97-3186-SAC, 1998 WL 80367 (D. Kan. Jan. 5, 1998). Appellant asks this
court to grant him a certificate of appealability and to reverse the decision of the
district court dismissing his section 2255 motion.
To obtain a certificate of appealability, an appellant must make a
substantial showing of the denial of a constitutional right. 28 U.S.C.
2253(c)(2). Appellant argues that his Sixth Amendment right to effective
assistance of counsel was violated because his counsel failed to challenge the
sufficiency of the governments evidence that the cocaine involved in his crimes
was crack cocaine. He claims that this failure prejudiced him because the court
erroneously accepted the presentence reports finding that the drug involved was
crack cocaine and imposed on Appellant the requisite heightened sentence for
crack cocaine. Appellant asserts that the courts acceptance of the presentence
reports finding was erroneous because the government failed to bring forward
sufficient evidence to prove that the substance was in fact crack cocaine. To
establish a claim for ineffective assistance of counsel, one must make credible
allegations [that] his counsels performance was deficient and that the
[deficient] performance prejudiced [him]. Lasiter v. Thomas, 89 F.3d 699, 703
(10th Cir.), cert. denied,
U.S. __ , 117 S. Ct. 493 (1996) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
Appellant attempts to prove his claims by stating that [n]o drugs [were]
-3-
ever produced to corroborate the allegation that his crime involved crack
cocaine. Appellants Br. at 10. It is not necessary for the government to produce
the drugs involved in the alleged crimes at trial or at sentencing in order to obtain
a conviction or enhance a sentence. See United States v. Cantley, 130 F.3d 1371,
1379 (10th Cir. 1997), cert. denied,
U.S.
, 118 S. Ct. 1098 (1998); United
States v. Silvers, 84 F.3d 1317, 1327 (10th Cir. 1996), cert. denied, __ U.S. __ ,
117 S. Ct. 742 (1997). Contrary to Appellants assertions, it is not necessary for a
chemist or scientist to testify at trial in order to establish the type of drug
involved. See United States v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th
Cir.) (affirming the principle that lay testimony and circumstantial evidence may
be sufficient for a jury to find that a substance was identified beyond a
reasonable doubt), cert. denied, 495 U.S. 939 (1990). Additionally, Appellant
offers no evidence to prove that the drug at issue was not crack cocaine but some
other form of cocaine. See Cantley, 130 F.3d at 1379 (Finally, though we
recognize the burden is on the government to prove the substances were crack
cocaine, [defendant] has presented no evidence whatsoever to show that the
substances were not crack cocaine.).
When determining a defendants sentence, the trial court may rely on any
testimony which has a sufficient indicia of reliability. United States v.
Beaulieu, 893 F.2d 1177, 1179-80 (10th Cir.), cert. denied, 497 U.S. 1038 (1990).
-4-
At the sentencing hearing, the government introduced a statement by Appellant
that he provided 500 grams of crack cocaine to a co-conspirator. See Brazier,
1996 WL 218605, at **5 & n.6. Although this statement was offered to impeach
Appellants credibility, it was sufficient for the trial court to have properly found
that the drugs involved were crack cocaine. The trial court also reasonably relied
on trial testimony identifying the drug at issue as crack cocaine, testimony which
this court discussed in its review of Appellants challenge, on direct criminal
appeal, to the quantity of drugs at issue. See id. at *4; United States v. Hooks, 65
F.3d 850, 854 (10th Cir. 1995) (In essence, Defendant requests we reverse the
district court because [the witness] was not a believable witness. This we will not
do.), cert. denied, 516 U.S. 1083 (1996).
We conclude that Appellants allegations of ineffective assistance of
counsel are insufficient to establish a claim under the standard established by
Strickland. See Lasiter, 89 F.3d at 703-04. Appellant has not provided a legally
meritorious argument that his counsels performance prejudiced him. Therefore,
because Appellant has not made a substantial showing that he was denied his
right to effective assistance of counsel, we DENY him a certificate of
appealability. We AFFIRM the decision of the district court dismissing
-5-
Appellants petition pursuant to section 2255.
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
-6-
