* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of the cour t’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, th is panel has determined unanimously to honor the parties’ re quest 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 theref ore ordered submitted without oral argument. James Joubert filed a pro se petition for writ of h abeas corpus pursuant to 28 U.S.C. § 2255 alleging ineffe ctive assistance of counsel at both the trial and appella te levels. The district court denied Mr. Joubert’s petition onthe merits. Mr. Joubert appeals this denial, and we affirm.-2-

Mr. Joubert argues that his counsel erred by failin g to object to jury instructions referring to the contro lled substance as “cocaine” when the indictment referred to the co ntrolled 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 c ounsel’s unprofessional errors, the result of the proceedingwould have been different. Strickland v. Washington , 466 U.S. 668, 687-88, 694 (1984). We need not address whether Mr. Jouber t’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 constru ctively amended and that the jury may have convicted him ona legally insufficient basis. “An indictment is constructive ly amended if the evidence presented at trial, together with the jury instructions, raises the possibility that the defen dant 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 con spiracy to distribute a controlled substance in violation of 2 1 U.S.C. § 846. Although the reference in the jury instructio ns to the controlled substance cocaine instead of cocaine-bas e (crack) was inaccurate, the distinction between the two forms o f 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 wit h respect to the substantive drug offenses underlying a conspira cy, the quantity of drugs is not an element of the crime an d is only relevant to sentencing. Cf. United States v. Cox , 934 F.2d 1114, 1121 (10th Cir. 1991)(“[T]he quantity of the [contr olled substance] possessed by a defendant is not an eleme nt 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 und er the sentencing guidelines.”). In order to convict of asubstantive drug offense, the government need not prove the qua ntity involved beyond a reasonable doubt. United States v. Jenkin s , 866 F.2d 331, 334 (10th Cir. 1989). Similarly, the quantityof controlled substance is not relevant to a conviction for consp iracy to distribute the controlled substance; it is relevant only to1 The district court’s imposition of a sentence basedon

cocaine-base was supported by a preponderance of th e evidence at the trial that cocaine-base was the object of the c onspiracy. -4- sentencing. Cocaine-base is a form of cocaine which is consider ed by Congress, for sentencing purposes only, to be more offensive than powder cocaine. 1Because the legal distinction between cocaine and cocaine-base (crack) is relevant only to senten cing, 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 tha t Mr. Joubert was convicted of a crime not charged in the indictm ent. The judgment of the district court is AFFIRMED subs tantially for the reasons given in the district court’s opini on. The mandate shall issue forthwith. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge