* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### JAN 13 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. WESLEY ALLEN DORROUGH,

Defendant-Appellant. No. 97-7137 (D.C. No. 97-CV-271-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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.1 Petitioner’s second § 2255 motion was filed in Octo ber 1992, well before

the enactment of the Antiterrorism and Effective De ath Penalty Act.

2 At the time of petitioner’s original sentencing, a footnote in the drug quantity table provided “the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or subst ance containing a detectable amount of the controlled substance.” USSG § 2D1.1( c), (n.*) (1989). In 1993, comment. (n.1) was amended to provide: “Mixture orsubstance does not include materials that must be separated from the controlle d substance before the controlled substance can be used.” USSG, App. C, amend. 484. Sentencing courts have discretion to apply the amendment retroactively. See USSG (continued...) -2- Petitioner Wesley Allen Dorrough was convicted by ajury on counts of drug conspiracy, interstate travel in aid and promo tion of a drug offense, attempt to manufacture Schedule II controlled substances, a nd possession of a Schedule II controlled substance with intent to manufacture amp hetamine. Because the arresting officers seized ninety-four liters of a l iquid mixture containing P2P, the district court calculated petitioner’s base off ense level at thirty-four and sentenced petitioner accordingly. This court affir med the convictions and sentence on direct appeal. See United States v. Dorrough , 927 F.2d 498 (10th Cir. 1991). On appeal of the denial of petitioner’s second § 2255 motion, 1 this court remanded the case to the district court for a deter mination of whether petitioner was entitled to a sentence reduction based on an am endment to commentary n.1 to § 2D1.1 of the United States Sentencing Guidelines (USSG). See Dorrough v. United States , No. 94-7071, 1995 WL 43595, at **2 (10th Cir. Feb. 2, 1995). 22 (...continued)

§ 1B1.10(a) &(c).

3 This third § 2255 motion, filed after the enactmentof AEDPA, is not a successive petition under that Act because the clai ms raised in it are based on ineffective assistance of the appointed counsel who represented petitioner after this court remanded a portion of petitioner’s secon d § 2255 petition. This ineffective assistance claim did not exist when the first two § 2255 motions were filed and thus cannot be the basis of a successive petition. See United States v. Scott , 124 F.3d 1328, 1330 (10th Cir. 1997). -3- On remand, the district court refused to recalculat e petitioner’s sentence, and this court affirmed. See United States v. Dorrough , 84 F.3d 1309, 1311-12 (10th Cir. 1996). After the failure of the direct appeal of his resen tencing, petitioner filed his third § 2255 motion which is the subject of this appeal. 3 In his motion, petitioner charges that he received ineffective assistance of counsel during the resentencing proceedings. We disagree. In order to establish that he was denied effective assistance of counsel, petitioner must prove that his counsel’s performanc e was deficient when compared to existing professional standards and that such deficiency operated to his prejudice. See Strickland v. Washington , 466 U.S. 668, 687-88 (1984). Prejudice is shown “by demonstrating that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the resultof the proceeding would have been different.’” Kimmelman v. Morrison , 477 U.S. 365, 381 (1986) (quoting Strickland , 466 U.S. at 694). Here, petitioner has failed to overcome the “strong-4-

presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland , 466 U.S. at 689. In his brief, petitioner identifies several argumen ts he claims his counsel failed to make on his behalf during the resentencin g. Our review of the sentencing memorandum prepared by petitioner’s coun sel, however, reveals that all but one of the arguments urged by petitioner we re ably presented by his counsel. See R. Vol. I, tab 3, attachment 5. While counsel did not object to a statement in the addendum to the presentence repo rt in which the probation officer argued that waste water had already been ta ken into account in the Sentencing Guidelines despite the new amendment, we are convinced that this strategic decision by counsel did not affect the ou tcome of petitioner’s case.
See Strickland , 466 U.S. at 694 (requiring petitioner to show that results of proceeding would have been different). Finally, petitioner argues that the district court accepted the second addendum to the presentence report without making a ny factual findings. Rule 32(c)(1) of the Federal Rules of Criminal Procedure requires, inter alia , that a sentencing court make findings as to each matter in a presentence report controverted by the defendant. Specifically, petit ioner argues that the court did4 A petitioner may raise the failure to comply with Rule 32(c)(1) in a § 2255

motion even when the issue has not been raised on direct appeal. See United States v. Gattas , 862 F.2d 1432, 1434-35 (10th Cir. 1988). -5- not make a factual finding regarding the actual amo unt of P2P in the 94 liters of seized material. 4 We are hampered in deciding this issue by the fact that petitioner did not include any transcripts or other record of the rese ntencing in the materials submitted with this case. Nor did he include a cop y of the complete presentence report. We note, however, that in affirming the di strict court’s refusal to recalculate petitioner’s sentence, we quoted the di strict court’s statement after it had conducted the resentencing hearing: You argue that 91 liters of P2P seized at your clan destine laboratory contained waste water that would need to be separat ed from the controlled substance before it could be used. Upon further review, the Court finds that you were in the process of man ufacturing amphetamine when authorities seized the laboratory. The P2P that formed the basis of original offense level computat ions is a controlled substance recognized as an immediate pre cursor to the production of amphetamine. The guidelines take int o account a percentage of waste in P2P evidenced by the sizeabl e decrease in drug equivalency ratios. The Court adopts by reference the second addendum t o the Presentence Report, and I find by a preponderance o f the evidence that offense level computation based on 91 liters o f P2P is reasonable and proper. United States v. Dorrough , 84 F.3d at 1310. We find this statement adequate to discharge the district court’s duties under Rule 32 (c)(1).-6-

Petitioner’s application for a certificate of appea lability is DENIED, and this appeal is DISMISSED.

Entered for the Court

James E. Barrett Senior Circuit Judge