*Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41244

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY FORD,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:97-CV-127

_________________________________________________________________

January 19, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Anthony Larry Ford, #04980-78, pleaded guilty to possession

with intent to distribute cocaine base in violation of 21 U.S.C.

§ 841(a)(1). He was sentenced to 108 months’ imprisonment. He did

not file a direct appeal. He has now filed this petition for

habeas relief under 28 U.S.C. § 2255.

This court granted a certificate of appealability (COA) on the

question whether the district court abused its discretion in

denying him an evidentiary hearing on his claim of ineffective

counsel. United States v. Ford, No. 97-41244 (5th Cir. Jun. 18,
2

1998)(unpublished). The case is now before the court for decision.

Ford contends that an evidentiary hearing is required because

his verified allegations contradict the assertions made by his

counsel in counsel’s affidavit. He contends that counsel was

ineffective for 1) failing to object to the quantities of drugs

foreseeable to him; 2) failing to call defense witnesses at

sentencing relating to those quantities; 3) failing to consult with

him on the presentence report (“PSR”) as to those quantities; and

4) failing to file a notice of appeal upon his request challenging

the quantities of drugs attributable to him. He contends that the

record does not conclusively refute his allegations and that the

district court erred in not granting him an evidentiary hearing to

establish his claim.

Therefore, to determine whether we should remand this case for

a hearing to allow Ford to try to prove his allegations of

ineffective counsel, we turn to examine whether, if his allegations

are proved, he would be entitled to relief.

Our review of the record persuades us that there is no need to

remand for an evidentiary hearing because, even assuming his

specific allegations of counsel’s failure to act are established,

his ultimate claim of ineffective counsel is meritless because

there is no showing of prejudice. At the bottom of Ford’s case and

its many allegations is the single point: that his sentence is

based on greater quantities of drugs than should have been

attributable to him. The probation officer calculated Ford’s base
3

offense level at 32, based on 78.18 grams of cocaine base. The

probation officer stated that Ford was responsible for the amount

of cocaine base in his count of conviction and for the amount

considered as relevant conduct as described in the offense conduct

section of the PSR. At least 50 grams were needed to place him at

the 32 level. Id.; U.S.S.G. § 2D1.1(c)(4).

According to the offense conduct section of the PSR, as part

of an investigation of sales of crack from a residence at 1501

Francis Lane in Plano, Texas, undercover officer Paul Cogwell began

making undercover buys of cocaine base from the various defendants

in this case on April 1, 1994. The buys continued until the

defendants were arrested on August 31, 1994. Terry Pippens was

considered to be the leader of the drug conspiracy. All defendants

were operating out of the same residence and knew each other.

Three of the defendants were arrested on August 25, 1994, and were

found to be in possession of 59.25 grams of cocaine base. On

May 4, 1994, several of the defendants pooled their money to buy

12.5 grams of crack. Cogwell observed Ford and another defendant,

Ronald Pippens, intimidate crack cocaine customers. After the

customers had paid, Ford and Pippens would threaten the customers,

who would leave the crack they had just bought.

Between April 21 and August 17, 1994, 111 undercover buys were

made, 106 of which were crack buys. Thirty-four of the crack

transactions involved the defendants. A total of 78.18 grams of

crack cocaine was bought by Cogwell or seized from the defendants
 

1Ford’s wife’s maiden name was Pippens. PSR ¶ 24.

4

when arrested.

The probation officer noted that this 78.18 grams should be

considered as relevant conduct pursuant to § 1B1.3 for almost all

of the defendants. According to Cogwell’s observations, the

defendants, who were family-related,1 pooled their money and gave

it to either Terry Pippens or Ford for the purchase of cocaine from

a supplier in Dallas. When Ford and Pippens returned to the crack

house, the group would decide how the drugs would be sold that day

and would designate who would do the selling and who would act as

lookouts. The conspirators were physically present at the crack

house on a regular basis, were involved in the sale of crack

cocaine, and were aware that crack was being sold by the others.

Ford did not object to the PSR’s recommended use of 78.18

grams of crack to determine his base offense level. The district

court adopted the finding of the PSR. Ford argues that his counsel

was ineffective for failing to object. He claims that his counsel

did not review the PSR with him or consult with him on what

objections should be made. Ford’s contention is that he withdrew

from the conspiracy after his earlier arrest on a parole warrant

and should be held accountable for amounts of cocaine distributed

by the conspiracy after his arrest on June 28, 1994.

To prevail on his claim of ineffective assistance of counsel,

Ford must show 1) that his counsel’s performance was deficient in

that it fell below an objective standard of reasonableness; and 2)
 

2The letters attached to his § 2255 motion, allegedly sent by

Ford to his wife, are originals handwritten in pencil and show no

evidence of having been folded and mailed. R. 1, 118-20. Ford

does not allege that he copied his submissions from the originals.

5

that the deficient performance prejudiced his defense. Strickland

v. Washington, 466 U.S. 668, 687-94 (1984). In order to show

prejudice, Ford must demonstrate that counsel’s errors were so

serious as to “render[] the result of the trial unreliable or the

proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.

364, 372 (1993). A failure to establish either deficient

performance or prejudice defeats the claim. Strickland, 466 U.S.

at 697. In evaluating allegations of attorney error during a

noncapital sentencing proceeding, the court considers whether there

is a probability that, but for counsel’s deficiency, the

defendant’s sentence would have significantly less harsh. United

States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995); Spriggs v.

Collins, 993 F.2d 85, 88 (5th Cir. 1993).

Ford argues that the claim underlying his ineffective counsel

claim--that the district court erred in using the 78.18 grams as

relevant conduct because he withdrew from the conspiracy--is

evidenced by several letters he wrote to his wife while in prison

after his arrest on June 28, 1994. Ford allegedly2 wrote to “Big

Legs” on July 6, 1994, and asked her to tell “Pip” that “I am out

of that b----s---, don’t ask me what just tell him he knows what I

am talking about.” Ford does not contend that the district court

could not have found the 78.18 grams to be relevant conduct absent
6

his claim of withdrawal from the conspiracy.

Ford’s arrest alone would not have prevented him from being

held responsible for amounts of drugs distributed by the

conspiracy. See Puig-Infante, 19 F.3d at 945 (a defendant’s

incarceration by itself does not constitute withdrawal from a

conspiracy). The defendant must demonstrate that he had committed

affirmative acts inconsistent with the object of the conspiracy,

communicated in a manner reasonably calculated to reach

conspirators. Id. Applying this law, this court held in the case

of Robert Joe Kimble, one of Ford’s codefendants, that Kimble’s

arrest did not preclude holding him responsible for the amount of

drugs distributed after his arrest. See United States v. Kimble,

No. 95-40205 (5th Cir. Sept. 20, 1995)(unpublished). However, the

opinion in Kimble does not refer to any argument by Kimble that he

had taken affirmative steps to withdraw.

Ford makes such an argument. Even if one believes Ford’s

allegations either that counsel did not consult with him on the

PSR, or that Ford told counsel that he had withdrawn and counsel

failed to make the objection, his letters are not a sufficient

demonstration of a withdrawal to support his claim. His meaning in

his letters is known only to him. He specifically told his wife

not to ask what it was about. Ford asked “Big Legs” to tell “Pip”

“if” she saw him in Dallas. There was no specific time frame for

her to pass this information on to “Pip.” Again on July 19, 1994,

Ford asked his wife if she had seen Pip and whether she had told
7

him “what I said forget that s---- count me out he knows what I am

talking about.” Unfortunately for Ford, the letters do not show

what he is talking about. Finally, on July 27, 1994, Ford states

in his letter to Mary that he thanks her for telling her “brother

what I said.” These letters--which are the only evidence, assuming

they are authentic, that would tend to show that Ford withdrew from

the conspiracy--are not a sufficient demonstration of affirmative

acts inconsistent with the object of the conspiracy communicated in

a manner reasonably calculated to reach conspirators. PuigInfante, 19 F.3d at 945. Thus, counsel cannot be considered to

have been ineffective in the Strickland sense for failing to make

what ultimately is a meritless sentencing objection or failing to

appeal the sentence that otherwise is fully supported by the

record. Consequently, there is no need to remand this case for an

evidentiary hearing on his ineffective counsel claim. The district

court reached the correct result and is therefore

A F F I R M E D.