* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### DEC 5 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. WILLY REESE, Defendant-Appellant. No. 97-2181 (D.C. No. CIV-97-265-MV) (New Mexico)



### ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, PORFILIO 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); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.-2-

Willy Reese, a pro se prisoner, brought this habeas corpus action pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of trial counsel for failure to object to various aspects of his 78-month sentence for possession with intent to distribute more than ten grams of methamphetamine and aiding and abetting in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841 (b)(1)(B), and 18 U.S.C. § 2. The district court adopted the proposed findings an d recommendations of the magistrate judge and dismissed the action with prej udice. Mr. Reese now asks us to grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1) in order that he might appeal the district court’s denial of his § 2255 motion. The Magistrate Judge’s Proposed Findings and Recomm ended Disposition sets forth in detail Mr. Reese’s claims and his fai lure to demonstrate ineffective assistance. Mr. Reese first asserts he was sentenc ed for possession of “actual” methamphetamine without any proof that he possessedother than “regular” methamphetamine. However, the term “actual” in the Sentencing Guidelines does not refer to types of methamphetamine, but rather i ndicates that defendant is to be sentenced only according to the portion of the subs tance that is actually methamphetamine. See U.S.S.G. § 2D1.1, Note B to Drug Quantity Table. Furthermore, the guidelines applicable to Mr. Reese ’s sentencing make no distinction between types of methamphetamine for pu rposes of sentencing. See-3-

United States v. Glover , 97 F.3d 1345, 1347 n.2 (10th Cir. 1996); United S tates v. Rodriquez , 989 F.2d 583, 587 (2d Cir. 1993). Mr. Reese next contends that his sentence was impro perly enhanced due to the loaded gun found in his car at the time of his arrest and that he was prejudiced by his attorney’s failure to object. However, coun sel did object to the enhancement. Moreover, even had his objection beensustained, Mr. Reese’s 78- month sentence would still have fallen within the s entence range applicable absent the enhancement. Since Mr. Reese has failedto show either cause or prejudice for his failure to raise his claims on di rect appeal, the claims are procedurally barred. See United States v. Kahn , 835 F.2d 749, 753-54 (10th Cir. 1987); Strickland v. Washington , 466 U.S. 668, 687 (1984); United States v. Frady , 456 U.S. 152, 168 (1982). We conclude that Mr. Reese has failed to demonstrat e the denial of a constitutional right by showing that the issues rai sed on his appeal are debatable among jurists, that a court could resolve the issue s differently, or that the questions deserve further proceedings. We DENYthe certificate of appealability and DISMISS the appeal. See Lenox v. Evans , 87 F.3d 431 (10th Cir. 1996),-4-

cert. denied , 117 S. Ct. 746 (1997); United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge