* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 6 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. JAMES WARDELL QUARY,

Defendant - Appellant. No. 02-3111 D.C. Nos. 00-CV-3460-SAC and 95-CR-40083-08-SAC (D. Kansas)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Mr. Quary was indicted by a grand jury on eighty-on e counts of federal drug and drug-related offenses. He was convicted o n eighty of these counts,-2-

including a count for conspiracy “to possess with the intent to distribute or dispense 50 grams or more of a mixture or substance which contained cocaine base or crack cocaine,” which is a violation of 21 U.S.C. §§ 846, 841(a), 841(b)(1)(A). He received a life sentence, the statutory maximum under 21 U.S.C. § 841(b)(1)(A). We affirmed his convictions and sentences. United States v. Quary , 188 F.3d 520 (10th Cir.), 1999 WL 546999 (unpubli shed decision), cert. denied, 528 U.S. 1033 (1999). Mr. Quary then sought collateral relief in the dist rict court under 28 U.S.C. § 2255, presenting constitutional arguments seeking to have the sentence “vacate[d], set aside, or correct[ed].” The distri ct court denied Mr. Quary’s § 2255 petition and his request for a certificate of appealability (COA). Mr. Quary “appeals” the habeas denial, in effect renewing his petition for a COA in this court. He repeats the arguments presented to the d istrict court. Because his arguments fly in the face of well-accepted preceden t, we deny his request for a COA. BACKGROUND Mr. Quary was one of eight coconspirators charged w ith multiple federal drug crimes. The other indicted coconspirators ple d guilty pursuant to an1 For companion cases, see United States v. Smith , 188 F.3d 520 (10th Cir.),

1999 WL 547955 (unpublished decision), cert. denied, 528 U.S. 1034 (1999); United States v. Watkins , 188 F.3d 520 (10th Cir.), 1999 WL 609542 (unpubli shed decision), cert. denied, 528 U.S. 1034 (1999). -3- agreement. 1 Three coconspirators testified they distributed m ultiple kilos of crack cocaine, i.e., cocaine base, over a period of six t o eight months for Mr. Quary, whom they testified was the leader of the drug dist ribution conspiracy. During sentencing, the district court totaled the amounts of crack cocaine distributed by the coconspirators and other participants to establ ish the quantity of crack cocaine attributable to Mr. Quary—an estimated seventeen ki los. DISCUSSION To be granted a COA, Mr. Quary must first make “a s ubstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Second, he must demonstrate “reasonable jurists could debate whethe r . . . the petition should have been resolved in a different manner or that the iss ues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation marks and citation omitted). Mr. Quary makes several arguments. None has merit. A. Sentence Enhancing Factors 1. Apprendi Mr. Quary contends his life sentence is unconstitut ional because the factors-4-

enhancing his sentence were found by a preponderanc e of the evidence by the judge, instead of beyond a reasonable doubt by a ju ry. He relies on Apprendi v. New Jersey , 530 U.S. 466 (2000), maintaining it should be app lied retroactively to his case. In Apprendi , the court held, “[o]ther than the fact of a priorconviction, any fact that increases the penalty for a crime bey ond the prescribed statutory maximum must be submitted to a jury, and proved bey ond a reasonable doubt.” 530 U.S. at 490. His reliance is misplaced because Apprendiis not a watershed decision to be applied retroactively to initial hab eas petitions. United States v.
Mora , 293 F.3d 1213, 1219 (10th Cir.), cert. denied, 123 S. Ct. 388 (2002). Moreover, “the facts guiding judicial discretion be low the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt.” Harris v. United States , ___ U.S. ___, 122 S. Ct. 2406, 2418 (2002). Mr. Quary was indicted and convicted by a jury of conspiring to distribute more than fifty grams of crack cocaine, for which the penalty is ten years to life. 21 U.S.C. § 841(b)(1)(A). Because his life sentence is within that prescribed statutory range, it need not be submitte d to a jury. 2. Drug quantity in the indictment Mr. Quary maintains his conviction is invalid becau se the indictment did not specify drug quantity, thus (1) he had insuffic ient notice he could face life in prison, and (2) he should have been convicted under21 U.S.C. § 841(b)(1)(C) and-5-

received no more than thirty years in prison. Agai n he errs. First, the third superceding indictment states the sentence to be imposed for violating 21 U.S.C. § 846, referencing 21 U.S.C. § 841(a)(1), is not le ss than ten years, nor more than life in prison. Second, because 180 grams of crackcocaine was proved to the jury, as Mr. Quary admits, he was properly found gu ilty of § 841(b)(1)(A)—possessing 50 grams or more of crack c ocaine. B. Ineffective Assistance of Counsel A claim of ineffective assistance of counsel is a m ixed question of law and fact which we review de novo. Fisher v. Gibson , 282 F.3d 1283, 1290 (10th Cir. 2002). Mr. Quary must demonstrate his counsel made “errors so serious” that his performance could not be considered “reasonable[] u nder prevailing professional norms” and he must show a “reasonable probability t hat, absent the errors, the factfinder would have had a reasonable doubt respec ting guilt.” Strickland v. Washington , 466 U.S. 668, 687-88, 695 (1984). Mr. Quary claims his counsel was ineffective becaus e counsel argued during sentencing that 4.9 kilos of crack cocaine s hould be attributed to him rather than the 17 kilos urged by the government an d supported by the Presentence Investigation Report. Mr. Quary maintains his attorney should have insisted the amount was 180 grams, as alleged in th e indictment. However, counsel is not obligated to make factually or legal ly baseless arguments, no matter2 The amount of drugs in drug trafficking offenses un der United States

Sentencing Commission, Guidelines Manual , § 2D1.1 (Nov. 2002), are to be counted together if the “transactions [are] connect ed by a common criminal objective or constitut[e] part of a common scheme o r plan.” USSG § 3D1.2(b). See also USSG § 3D1.2(b), cmt. n.4, ex.4. -6- how strongly a client may regard the matter. Sever al coconspirators testified to distributing crack cocaine for Mr. Quary, which tot aled 17 kilos, and Mr. Quary provides no record evidence to support his contenti on of 180 grams. 2 In any event, even if he could establish only 180 grams we re attributable to him, he would still be unable to show harm from his counsel ’s argument. With only 180 grams of crack cocaine, i.e., cocaine base, Mr. Qua ry’s base offense level would have been 34, with an assessed criminal history cat egory of IV. USSG § 2D1.1(c)(1). A six-level increase was added to his base offense level for using minors in the distribution of drugs and for his lea dership role in the conspiracy, to which his attorney objected. This results in a bas e offense level of 40. The Guidelines sentencing range for an offense level of 40 and a criminal history category of IV is 360 months to life. Thus, even w ith only 180 grams of crack cocaine, the judge’s life sentence would still have been within the Guidelines’
range. Finally, Mr. Quary makes another argument of simila r ilk. He thinks his counsel should have argued that Apprendiapplied. To be competent, his counsel does not have to be prescient. Apprendiwas decided three years after Mr. Quary-7-

was sentenced. In any event, as discussed above, Apprendiis unavailing to him. CONCLUSION Accordingly, we deny Mr. Quary’s request for a cert ificate of appealability.

Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge