PUBLISH

UNITED STATES COURT OF APPEALS

Filed 10/7/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT L. GLOVER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID ZALE WANN,

Defendant-Appellant.

No. 95-5100

No. 95-5058

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. Nos. 94-C-995-E and 94-C-757-E)
1

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

therefore submitted without oral argument.

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Submitted on the briefs:

Robert Glover and David Zale Wann, pro se.

Stephen C. Lewis, United States Attorney, David E. O’Meilia and James L.

Swartz, Assistant United States Attorneys, Tulsa, Oklahoma, for PlaintiffAppellee.

Before EBEL, BARRETT, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Defendants David Wann and Robert Glover appeal from the joint denial of

their substantially similar motions to vacate, set aside, or correct sentence under

28 U.S.C. § 2255. The district court denied relief primarily on waiver grounds,

citing defendants’ failure to raise their objections at sentencing. For the reasons

that follow, we reverse and remand for further proceedings.1

I. Common Background

These companioned appeals arise out of a single criminal prosecution in

which defendants pled guilty to a two-count indictment charging conspiracy to
2

We note that, “as of November 1, 1995, this distinction between

methamphetamine types has been eliminated, and L-methamphetamine is now

treated the same as D-methamphetamine under the Guidelines.” United States v.

Watkins, 912 F. Supp. 417, 419 n.4 (E.D. Ark. 1996)(discussing U.S.S.G. App. C

Amendment to Drug Equivalency Tables in Commentary to § 2D1.1).

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distribute, and aiding and abetting the distribution of, methamphetamine. See 21

U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2. The type of methamphetamine involved

was never identified during the plea proceedings. There was nothing improper in

this, as the operative statutes do not distinguish among types of

methamphetamine, and, consequently, “[t]o convict a defendant, the prosecution

must prove [or the defendant must admit] . . . only that the substance was

generically methamphetamine.” United States v. Deninno, 29 F.3d 572, 579-80

(10th Cir. 1994), cert. denied, 115 S. Ct. 1117 (1995).

In contrast to their conflation for guilt-phase purposes, “[t]he sentencing

difference between D-methamphetamine and L-methamphetamine is significant.”2

Id. at 579 & n.3 (discussing enhanced base offense level assigned to

D-methamphetamine). Moreover, at the sentencing stage, “[s]ince the criminal

offense makes no distinction between the types of methamphetamine, it cannot be

assumed that [defendants] w[ere] convicted of [distribution] of

D-methamphetamine.” Id. at 580. Thus, even after defendants were formally

convicted, the government bore the “burden of proof and production” to show by
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a preponderance of the evidence the type of methamphetamine involved in their

offenses. Id.

We emphasize that neither the indictments nor the pleas in this case went

beyond the requisite statutory elements by specifying the type of

methamphetamine involved; if they had, subsequent (re)litigation of the issue

might well have been precluded, see United States v. Allen, 24 F.3d 1180, 1183

(10th Cir.)(guilty plea “admits both the acts described in the indictment and the

legal consequences of those acts”), cert. denied, 115 S. Ct. 493 (1994); United

States v. Morrison, 938 F.2d 168, 171 (10th Cir. 1991)(“[Defendant] cannot

[later] challenge the factual basis of the charge to which he pleaded guilty.”). 

Under these circumstances, the government’s newly raised contention that

defendants’ (generic) pleas obviated the need for substance-specific proof at

sentencing is meritless. 

The government fails to distinguish between guilt-phase issues, which are

reasonably deemed renounced by the later voluntary act of pleading guilty, and

independent sentencing errors, which, arising only after the plea, cannot be

deemed abandoned in the same common-sense way. Surely, for example, a

defendant who has pled guilty to a drug trafficking offense, has not thereby lost

the right to insist that any subsequently considered enhancement predicates, such

as career offender status or firearm use, be proven by the government before
3

The sole authority relied on by the government is an unpublished decision

of this court, which, without addressing Deninno, held that “[b]y pleading guilty

[to generic methamphetamine charges], [defendant] waived his right to claim that

the sentence [improperly enhanced for unproven involvement of

D-methamphetamine,] was based on inaccurate information. United States v.

Broce, 488 U.S. 563, 569 (1989)(collateral attack on guilty plea foreclosed when

plea is counseled and voluntary).” United States v. Stewart, No. 94-1551, 1995

WL 539473, at *1 (10th Cir. Aug. 31, 1995). The Supreme Court’s holding in

Broce, that a valid guilty plea precludes (most) guilt-phase attacks on the pleading

defendant’s conviction, in no way suggests a prospective waiver of subsequent

and independent sentencing error. Consequently, for the reasons discussed above,

we reject the approach followed in Stewart, see 10th Cir. R. 36.3 (unpublished

decision is not binding circuit precedent), though, in light of significant factual

differences, our decision here does not entail the conclusion that the result in

Stewart should have been different. See infra n.4.

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imposition of the corresponding enhanced sentence. Indeed, if the prospective

waiver of sentencing error suggested by the government were adopted as a general

matter, a pleading defendant effectively would have no enforceable right to a

valid sentence--a “clearly untenable” and “patent[ly] anomal[ous]” result.3 Green

v. Thomas, 57 F.3d 956, 959 (10th Cir. 1995)(rejecting similarly prospective

waiver principle in habeas context, because it would have imposed on the

petitioner “the unprecedented status of a constitutional orphan, denied protection

against yet unknown and unincurred deprivations”). Even a brief perusal of this

court’s burgeoning case law on the sentencing guidelines would reveal numerous

decisions considering the objections of pleading defendants, including those

convicted of generic methamphetamine offenses. See, e.g., United States v.
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Lande, 40 F.3d 329, 330-31 (10th Cir. 1994), cert. denied, 115 S. Ct. 1988 (1995). 

In the criminal proceedings below, both defendants were sentenced as if

they had been trafficking in D-methamphetamine, without any proof or findings

regarding the nature of the methamphetamine actually involved in their offenses. 

While defendants, proceeding pro se, framed their respective § 2255 motions

somewhat differently, correction of this basic error is their common aim. 

The government responded to the motions in the district court by arguing

that defendants’ objections regarding methamphetamine classification were

waived by counsel’s silence on the matter at sentencing (not to be confused with

the argument for waiver-by-plea under Stewart discussed above), citing this

court’s “all fours” holding to that effect in Deninno. See id. (“By failing to make

any objections to the [unsubstantiated] scoring of the methamphetamine [as

D-methamphetamine], [the defense] has in effect waived the issue for appeal.”). 

The district court agreed and denied both defendants’ illegal-sentence claims

under Deninno’s waiver rule. 

We certainly approve the district court’s assiduous enforcement of circuit

precedent regarding the waiver of unpreserved sentencing objections. However,

defendants also raise claims of ineffective assistance of counsel that are not

undermined, but rather bolstered, by just such prejudicial consequences of
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counsel’s omissions at sentencing. We turn now to these latter claims, discussing

separately the distinct procedural circumstances of each defendant below. 

II. Defendant Wann

Mr. Wann was sentenced to two concurrent prison terms of 120 months,

followed by five years’ supervised release. He did not take an appeal. The

present § 2255 motion, his first, challenges his sentence on the ground that

defense counsel did not invoke, the district court did not enforce, and the

prosecution did not satisfy, the government’s burden of proof regarding the type

of methamphetamine upon which his sentence was based. Since we are here

concerned only with the ineffective assistance aspect, a matter properly left to

collateral proceedings, our analysis of Mr. Wann’s claim is not complicated by

procedural bar concerns. See United States v. Galloway, 56 F.3d 1239, 1240-41

(10th Cir. 1995).

The district court rejected Mr. Wann’s ineffective assistance claim under

the controlling performance-and-prejudice standard of Strickland v. Washington,

466 U.S. 668, 686-87 (1984)(requiring objectively deficient performance serious

enough to undermine adversarial process and prejudice severe enough to deprive

defendant of a fair trial). See also Lockhart v. Fretwell, 506 U.S. 364, 369

(1993). Specifically, the district court held:

While Wann may meet his burden on the prejudice prong of the test,

his assertions are not sufficient to meet the burden of demonstrating
4

The district court and the parties proceeded on the premise that counsel’s

failure to object to the unsubstantiated D-methamphetamine sentence reflected a

purely unintentional error of ignorance. Because our record contains nothing to

suggest any tactical motive for the omission, such as the cautious preservation of

an otherwise advantageous plea bargain (as was present in Stewart, see supra n.3),

we do not question the accepted characterization of counsel’s conduct.

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that his counsel was not reasonably effective. . . . He states in his

original [M]otion to Correct Sentence that “No one involved in [the]

sentencing process at the time knew about or understood . . . the

sentencing guidelines difference as to the two related substances both

generically methamphetamine.” Based on this lack of knowledge, the

Court concludes that Wann’s counsel was not ineffective in failing to

raise the issue.

R. doc. 122 at 2-3. We cannot agree with the reasoning and conclusion stated.

Our analysis is guided both by the Supreme Court’s broad formulation in

Strickland and by this court’s particularized application thereof to analogous facts

in United States v. Kissick, 69 F.3d 1048 (10th Cir. 1995). When counsel has

unwittingly relieved the government of its burden of proof,4 particularly when the

evidence of record does not satisfy that burden, it is fair to say counsel has “so

undermined the proper functioning of the adversarial process that [it] cannot be

relied on as having produced a just result.” Strickland, 466 U.S. at 686. This is,

of course, “[t]he benchmark for judging any claim of ineffectiveness.” Id.; see

also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)(“The essence of an

ineffective-assistance claim is that counsel’s unprofessional errors so upset the

adversarial balance between defense and prosecution that the [proceeding] was
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rendered unfair and the [result] rendered suspect.”). Thus, we recently held in

Kissick that “[a]n attorney’s failure to challenge the use of a prior conviction to

classify the defendant as a career offender [for sentence enhancement] when that

prior conviction is facially insufficient to satisfy [the government’s burden under

the pertinent guideline] . . . constitutes deficient performance under Strickland.” 

Kissick, 69 F.3d at 1056 (characterizing sentencing challenge overlooked by

counsel as “dead-bang winner”). We see no principled distinction between the

professional omissions in Kissick and the instant case.

Accordingly, we reject the district court’s holding that counsel’s conduct at

sentencing, though in error, was nevertheless within the range of reasonable

professional competence. The illegal-sentence issue counsel failed to raise was

clearly meritorious under the existing guidelines and elementary burden-of-proof

principles, surely both matters within the requisite expertise of a practicing

member of the criminal defense bar. See United States v. Acklen, 47 F.3d 739,

743 (5th Cir. 1995)(“Merely reading the commentary to the rule would have

alerted counsel to the potentially significant impact on [methamphetamine]

sentencing that the type of isomers involved can have.”). In our view, Mr.

Wann’s belief that counsel’s ignorance was shared by everyone at sentencing,

which was emphasized by the district court in the passage quoted above, simply

reflects his personal interpretation of the prejudice manifest at sentencing, i.e.,
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that counsel’s error directly translated into an unsubstantiated sentence without

any corrective intervention. 

Defense counsel was the legal representative retained and duty-bound to

pursue Mr. Wann’s interests with professional zeal; the fact that others in neutral

or adversarial positions did not intervene on Mr. Wann’s behalf implies nothing

about the prevalence or excusability of counsel’s ignorance of the law favorable

to his client. Indeed, if inferences in this regard were appropriate, the prejudice

prong of the Strickland test, which requires consequential error (i.e., serious legal

mistakes uncorrected by anyone else involved in the proceeding), would impose a

catch-22 whenever counsel’s deficient performance had a professional audience,

as in any adversarial court proceeding. Under such a view, even those overlooked

“dead-bang winners” indicative of professional incompetence would, if

prejudicial, simply reflect common, and hence presumably reasonable,

professional limitations. 

As our discussion thus far has perhaps already suggested, we also deem

counsel’s nonfeasance to have been prejudicial in the Strickland sense. “[W]hen

counsel’s constitutionally deficient performance results in the defendant’s

improper classification . . . and when that improper classification results in a

significantly greater sentence, the prejudice element of Strickland is satisfied.” 

Kissick, 69 F.3d at 1056. Mr. Wann alleges, without challenge on our record, that
5

While we hold, following Kissick, 69 F.3d at 1057, that counsel’s deficient

representation should not relieve the government of its original obligation to

substantiate any enhanced sentence imposed, we emphasize that this burden is not

unduly onerous in the present circumstances. As already noted, the government

need prove the factual prerequisites for sentencing only by a preponderance of the

evidence. Moreover, if the substance or mixture involved in the offense

(continued...)

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his sentencing range was improperly enhanced from 63 - 78 months to 110 - 134

months on each methamphetamine count. That is a significant difference

reflecting cognizable prejudice. Cf. id.

That said, we acknowledge that the true character of the methamphetamine

involved in Mr. Wann’s offenses has never been determined. Thus, just as in

Kissick where the record could not confirm or refute the requisite nature of the

prior offense used to enhance the defendant’s sentence, “the record before us does

not allow a definitive conclusion as to the performance of [defense] counsel and

the impact of that performance on the sentence received by Mr. [Wann].” 

Id. (emphasis added). “Because of the significant impact of the [substance

classification] on sentencing and because the nature of the [substance] was not

specifically addressed by the district court in either the initial sentencing or the

Section 2255 proceedings, we conclude that this matter should be remanded to the

district court.” Id. at 1057. The district court should determine, if possible, the

type of methamphetamine involved in Mr. Wann’s offenses. If the government

can establish that the substance was in fact D-methamphetamine,5 Mr. Wann
5

(...continued)

contained any detectable amount of D-methamphetamine, the defendant may be

sentenced at the higher level. See United States v. Decker, 55 F.3d 1509 (10th

Cir. 1995). Finally, even “[w]hen . . . no direct evidence of the drug’s chemical

composition or the method of its manufacture is available, circumstantial 

evidence may be sufficient to determine which isomer is involved.” United States

v. Dudden, 65 F.3d 1461, 1471 (9th Cir. 1995); see, e.g., Lande, 40 F.3d at 331. 

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obviously would not be entitled to resentencing; otherwise, however, it must be

concluded that defense counsel’s failure to challenge Mr. Wann’s sentence in this

regard satisfies the performance and prejudice elements of Strickland and,

consequently, that Mr. Wann’s enhanced sentence cannot stand. Kissick, 69 F.3d

1057.

III. Defendant Glover

Our substantive discussion of Mr. Wann’s ineffective assistance claim is

equally pertinent with respect to Mr. Glover (who received concurrent 151-month

prison terms, and five years’ supervised release, on the methamphetamine counts). 

However, certain procedural complications attend the disposition of Mr. Glover’s

§ 2255 motion. First, the government maintains that the motion, which lists

“Illegal Sentence” as the sole ground for relief, see R doc. 106 at 6, failed to raise

the issue of counsel’s ineffectiveness. Mr. Glover did, however, cite counsel’s

nonfeasance at sentencing as part and parcel of the principal claim asserted: “At

no time during the Sentencing proceeding did the Government, Court, or my

retained Attorney ascertain what type of methamphetamine was the drug: 
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D-Methamphetamine or L-Methamphetamine.” Id. In Osborn v. Shillinger, 997

F.2d 1324 (10th Cir. 1993), this court was confronted with a habeas petition

which, like Mr. Glover’s § 2255 motion, tied secondary allegations of counsel

misconduct to a distinct “primary” claim. Specifically, the petitioner bolstered an

involuntary-plea claim by alleging that “error[] by the court and his

counsel . . . also coerced him into making the plea.” Id. at 1326. This court held

that the adequacy of counsel’s representation had been sufficiently raised by the

petition: “Though [petitioner] does not directly state a claim for ineffective

counsel . . ., we must construe his claims liberally because he appears pro se. On

that basis, we will address his contentions of counsel failure as ineffective

assistance.” Id. at 1328 n.1 (citations omitted). We follow the same course here.

A more formidable procedural obstacle to Mr. Glover’s motion may have

been overlooked by the government. The present proceeding is, by Mr. Glover’s

own admission, his second attempt to obtain relief under § 2255. See R doc. 106

at 3-5. If, once given an opportunity to address the potential abuse-of-procedure

problem evident here, Mr. Glover is unable to justify his earlier omission of the

ineffective-assistance claim, his motion may be subject to dismissal on that basis. 

We leave the engagement and resolution of this matter to the sound discretion of

the district court on remand. See generally Sanders v. United States, 373 U.S. 1,

18 (1963); Hawkins v. Evans, 64 F.3d 543, 545-46 (10th Cir. 1995).
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The judgment of the United States District Court for the Northern District

of Oklahoma denying defendants relief under 28 U.S.C. § 2255 is REVERSED,

and the cause is REMANDED for further proceedings consistent with this order

and judgment.