*This order and judgment is not binding precedent, except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 the court’s General

Order filed November 29, 1993. 151 F.R.D. 470.

UNITED STATES COURT OF APPEALS

Filed 11/2/95

TENTH CIRCUIT

UNITED STATES OF AMERICA, )

(

Plaintiff-Appellee, )

) No. 95-5045

v. ) (D.C. No. 94-C-1146-E)

) (N.D. Okla.)

JAMES E. JOUBERT, )

)

Defendant-Appellant. )

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel

has determined unanimously to honor the parties’ request for a

decision on the briefs without oral argument. See Fed. R. App.

P. 34(f); 10th Cir. R. 34.1.9. The cause is therefore ordered

submitted without oral argument.

James Joubert filed a pro se petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2255 alleging ineffective

assistance of counsel at both the trial and appellate levels. 

The district court denied Mr. Joubert’s petition on the merits. 

Mr. Joubert appeals this denial, and we affirm.
-2-

Mr. Joubert argues that his counsel erred by failing to

object to jury instructions referring to the controlled substance

as “cocaine” when the indictment referred to the controlled

substance as “cocaine-base (crack).” The district court agreed

that the reference to “cocaine” was inaccurate but held it was

harmless.

To succeed on an ineffective assistance of counsel claim,

Mr. Joubert must prove both that (1) his counsel’s performance

fell below an objective standard of reasonableness, and (2) that

a reasonable probability exists that, but for his counsel’s

unprofessional errors, the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 687-88,

694 (1984). We need not address whether Mr. Joubert’s counsel’s

performance was deficient if we determine that Mr. Joubert did

not suffer prejudice. Id. at 697.

Mr. Joubert asserts that the indictment was constructively

amended and that the jury may have convicted him on a legally

insufficient basis. “An indictment is constructively amended if

the evidence presented at trial, together with the jury

instructions, raises the possibility that the defendant was

convicted of an offense other than that charged in the

indictment.” United States v. Apodaca, 843 F.2d 421, 428 (10th

Cir. 1988) (citations omitted).

Mr. Joubert was convicted of conspiracy to possess with
-3-

intent to distribute a controlled substance and conspiracy to

distribute a controlled substance in violation of 21 U.S.C. §

846. Although the reference in the jury instructions to the

controlled substance cocaine instead of cocaine-base (crack) was

inaccurate, the distinction between the two forms of cocaine is

not relevant to the conspiracy charge. The essence of a drug

conspiracy is not the type of controlled substance involved, but

rather is a defendant’s participation in an illegal agreement to

commit substantive drug violations. As is true with respect to

the substantive drug offenses underlying a conspiracy, the

quantity of drugs is not an element of the crime and is only

relevant to sentencing. Cf. United States v. Cox, 934 F.2d 1114,

1121 (10th Cir. 1991)(“[T]he quantity of the [controlled

substance] possessed by a defendant is not an element of the

substantive offense as defined in 21 U.S.C. § 841(a).”); United

States v. Poole, 929 F.2d 1476, 1483 (10th Cir. 1991)(“The

quantity of a substance possessed by the defendant becomes

relevant only in computing a base offense level under the

sentencing guidelines.”). In order to convict of a substantive

drug offense, the government need not prove the quantity involved

beyond a reasonable doubt. United States v. Jenkins, 866 F.2d

331, 334 (10th Cir. 1989). Similarly, the quantity of controlled

substance is not relevant to a conviction for conspiracy to

distribute the controlled substance; it is relevant only to
1The district court’s imposition of a sentence based on

cocaine-base was supported by a preponderance of the evidence at

the trial that cocaine-base was the object of the conspiracy.

-4-

sentencing. 

Cocaine-base is a form of cocaine which is considered by

Congress, for sentencing purposes only, to be more offensive than

powder cocaine.1 Because the legal distinction between cocaine

and cocaine-base (crack) is relevant only to sentencing, the

indictment was not constructively amended, and Mr. Jenkins was

not prejudiced by his attorney’s failure to object to the jury

instructions. No reasonable possibility exists that Mr. Joubert

was convicted of a crime not charged in the indictment. 

The judgment of the district court is AFFIRMED substantially

for the reasons given in the district court’s opinion. The

mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge