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, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore submitted without oral argument. -2- 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, O klahoma, for PlaintiffAppellee.

Before EBEL, BARRETT, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Defendants David Wann and Robert Glover appeal fromthe 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 objection s at sentencing. For the reasons that follow, we reverse and remand for further proc eedings. 1 I. Common Background These companioned appeals arise out of a single cri minal prosecution in which defendants pled guilty to a two-count indictm ent charging conspiracy to2 We note that, “as of November 1, 1995, this distinc tion between

methamphetamine types has been eliminated, and L-me thamphetamine is now treated the same as D-methamphetamine under the Gui delines.” United States v. Watkins , 912 F. Supp. 417, 419 n.4 (E.D. Ark. 1996)(discus sing U.S.S.G. App. C Amendment to Drug Equivalency Tables in Commentary to § 2D1.1). -3- distribute, and aiding and abetting the distributio n 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 adefendant, the prosecution must prove [or the defendant must admit] . . . only that the substance was generically methamphetamine.” United States v. Den inno , 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-methamph etamine is significant.” 2
Id. at 579 & n.3 (discussing enhanced base offense lev el assigned to D-methamphetamine). Moreover, at the sentencing st age, “[s]ince the criminal offense makes no distinction between the types of m ethamphetamine, it cannot be assumed that [defendants] w[ere] convicted of [dist ribution] 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-4-

a preponderance of the evidence the type of methamp hetamine involved in their offenses. Id. We emphasize that neither the indictments nor the p leas in this case went beyond the requisite statutory elements by specifyi ng 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 descr ibed 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] c annot [later] challenge the factual basis of the charge t o which he pleaded guilty.”). Under these circumstances, the government’s newly r aised contention that defendants’ (generic) pleas obviated the need for s ubstance-specific proof at sentencing is meritless. The government fails to distinguish between guilt-p hase 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. Sur ely, for example, a defendant who has pled guilty to a drug trafficking offense, has not thereby lost the right to insist that any subsequently considere d enhancement predicates, such as career offender status or firearm use, be proven by the government before3 The sole authority relied on by the government is a n unpublished decision

of this court, which, without addressing Deninno , held that “[b]y pleading guilty [to generic methamphetamine charges], [defendant] w aived his right to claim that the sentence [improperly enhanced for unproven invo lvement of D-methamphetamine,] was based on inaccurate information. United States v. Broce , 488 U.S. 563, 569 (1989)(collateral attack on gui lty 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-p hase attacks on the pleading defendant’s conviction , in no way suggests a prospective waiver of subseq uent and independent sentencing error. Consequently, fo r 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 Stewartshould have been different. See infran.4. -5- imposition of the corresponding enhanced sentence. Indeed, if the prospective waiver of sentencing error suggested by the governm ent were adopted as a general matter, a pleading defendant effectively would have no enforceable right to a valid sentence--a “clearly untenable” and “patent[l y] anomal[ous]” result. 3 Green v. Thomas , 57 F.3d 956, 959 (10th Cir. 1995)(rejecting simil arly prospective waiver principle in habeas context, because it woul d have imposed on the petitioner “the unprecedented status of a constitut ional orphan, denied protection against yet unknown and unincurred deprivations”). Even a brief perusal of this court’s burgeoning case law on the sentencing guide lines would reveal numerous decisions considering the objections of pleading de fendants, including those convicted of generic methamphetamine offenses. See , e.g. , United States v.-6-

Lande , 40 F.3d 329, 330-31 (10th Cir. 1994), cert. denie d , 115 S. Ct. 1988 (1995).

In the criminal proceedings below, both defendants were sentenced as if they had been trafficking in D-methamphetamine, wit hout any proof or findings regarding the nature of the methamphetamine actuall y involved in their offenses. While defendants, proceeding pro se, framed their r espective § 2255 motions somewhat differently, correction of this basic erro r is their common aim. The government responded to the motions in the dist rict court by arguing that defendants’ objections regarding methamphetami ne classification were waived by counsel’s silence on the matter at senten cing (not to be confused with the argument for waiver-by-pleaunder Stewartdiscussed above), citing this court’s “all fours” holding to that effect in Denin no . See id. (“By failing to make any objections to the [unsubstantiated] scoring of the methamphetamine [as D-methamphetamine], [the defense] has in effect wai ved the issue for appeal.”). The district court agreed and denied both defendant s’ 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 sente ncing objections. However, defendants also raise claims of ineffective assista nce of counsel that are not undermined, but rather bolstered, by just such prej udicial consequences of-7-

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 se ntence on the ground that defense counsel did not invoke, the district court did not enforce, and the prosecution did not satisfy, the government’s burde n of proof regarding the type of methamphetamine upon which his sentence was base d. Since we are here concerned only with the ineffective assistance aspe ct, 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 d eficient performance serious enough to undermine adversarial process and prejudi ce 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 pro ng of the test, his assertions are not sufficient to meet the burde n of demonstrating4 The district court and the parties proceeded on the premise that counsel’s

failure to object to the unsubstantiated D-methamph etamine sentence reflected a purely unintentional error of ignorance. Because o ur record contains nothing to suggest any tactical motive for the omission, such as the cautious preservation of an otherwise advantageous plea bargain (as was pres ent in Stewart , see supran.3), we do not question the accepted characterization of counsel’s conduct. -8- 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 unders tood . . . the sentencing guidelines difference as to the two related substances both generically methamphetamine.” Based on this lack o f knowledge, the Court concludes that Wann’s counsel was not ineffec tive in failing to raise the issue. R. doc. 122 at 2-3. We cannot agree with the reaso ning and conclusion stated. Our analysis is guided both by the Supreme Court’s broad formulation in Stricklandand by this court’s particularized application the reof 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 o f proof, 4 particularly when the evidence of record does not satisfy that burden, itis fair to say counsel has “so undermined the proper functioning of the adversaria l process that [it] cannot be relied on as having produced a just result.” Stric kland , 466 U.S. at 686. This is, of course, “[t]he benchmark for judging any claim o f ineffectiveness.” Id. ; see also Kimmelman v. Morrison , 477 U.S. 365, 374 (1986)(“The essence of an ineffective-assistance claim is that counsel’s unpr ofessional errors so upset the adversarial balance between defense and prosecutio n that the [proceeding] was-9-

rendered unfair and the [result] rendered suspect.” ). Thus, we recently held in Kissickthat “[a]n attorney’s failure to challenge the use of a prior conviction to classify the defendant as a career offender [for se ntence enhancement] when that prior conviction is facially insufficient to satisf y [the government’s burden under the pertinent guideline] . . . constitutes deficien t performance under Strickland .” Kissick , 69 F.3d at 1056 (characterizing sentencing challe nge overlooked by counsel as “dead-bang winner”). We see no principl ed distinction between the professional omissions in Kissickand the instant case. Accordingly, we reject the district court’s holding that counsel’s conduct at sentencing, though in error, was nevertheless withi n the range of reasonable professional competence. The illegal-sentence issu e counsel failed to raise was clearly meritorious under the existing guidelines a nd elementary burden-of-proof principles, surely both matters within the requisit e 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 impa ct on [methamphetamine] sentencing that the type of isomers involved can have.”). In our view, Mr. Wann’s belief that counsel’s ignorance was shared b y everyone at sentencing, which was emphasized by the district court in the p assage quoted above, simply reflects his personal interpretation of the prejudi ce manifest at sentencing, i.e.,-10-

that counsel’s error directly translated into an un substantiated sentence without any corrective intervention. Defense counsel was the legal representative retain ed 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. W ann’s behalf implies nothing about the prevalence or excusability of counsel’s i gnorance of the law favorable to his client. Indeed, if inferences in this regard were appropriate, the prejudice prong of the Stricklandtest, 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 h ad a professional audience, as in any adversarial court proceeding. Under such a view, even those overlooked “dead-bang winners” indicative of professional inco mpetence would, if prejudicial, simply reflect common, and hence presu mably reasonable, professional limitations. As our discussion thus far has perhaps already sugg ested, we also deem counsel’s nonfeasance to have been prejudicial in t he Stricklandsense. “[W]hen counsel’s constitutionally deficient performance re sults in the defendant’s improper classification . . . and when that imprope r classification results in a significantly greater sentence, the prejudice eleme nt of Stricklandis satisfied.” Kissick , 69 F.3d at 1056. Mr. Wann alleges, without chall enge on our record, that5 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 emph asize that this burden is not unduly onerous in the present circumstances. As al ready noted, the government need prove the factual prerequisites for sentencing only by a preponderance of the evidence. Moreover, if the substance or mixture in volved in the offense (continued...) -11- his sentencing range was improperly enhanced from 6 3 - 78 months to 110 - 134 months on each methamphetamine count. That is a si gnificant difference reflecting cognizable prejudice. Cf. id. That said, we acknowledge that the true character o f the methamphetamine involved in Mr. Wann’s offenses has never been dete rmined. Thus, just as in Kissickwhere the record could not confirm or refute the r equisite nature of the prior offense used to enhance the defendant’s sente nce, “the record before us does not allow a definitive conclusion as to the performance of [defense] coun sel and the impact of that performance on the sentence rece ived by Mr. [Wann].” Id. (emphasis added). “Because of the significant imp act of the [substance classification] on sentencing and because the natur e of the [substance] was not specifically addressed by the district court in eit her 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 offe nses. If the government can establish that the substance was in fact D-meth amphetamine, 5 Mr. Wann5 (...continued)

contained any detectable amount of D-methamphetamin e, 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 ava ilable, circumstantial evidence may be sufficient to determine which isome r is involved.” United States v. Dudden , 65 F.3d 1461, 1471 (9th Cir. 1995); see, e.g. , Lande , 40 F.3d at 331. -12- obviously would not be entitled to resentencing; ot herwise, however, it must be concluded that defense counsel’s failure to challen ge Mr. Wann’s sentence in this regard satisfies the performance and prejudice elem ents of Stricklandand, consequently, that Mr. Wann’s enhanced sentence can not stand. Kissick , 69 F.3d
1057. III. Defendant Glover Our substantive discussion of Mr. Wann’s ineffectiv e assistance claim is equally pertinent with respect to Mr. Glover (who r eceived concurrent 151-month prison terms, and five years’ supervised release, o n the methamphetamine counts). However, certain procedural complications attend th e disposition of Mr. Glover’s § 2255 motion. First, the government maintains that the motion, which lists “Illegal Sentence” as the sole ground for relief, s ee R doc. 106 at 6, failed to raise the issue of counsel’s ineffectiveness. Mr. Gloverdid, 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 Go vernment, Court, or my retained Attorney ascertain what type of methamphet amine was the drug:-13-

D-Methamphetamine or L-Methamphetamine.” Id. In Osborn v. Shillinger , 997 F.2d 1324 (10th Cir. 1993), this court was confront ed with a habeas petition which, like Mr. Glover’s § 2255 motion, tied second ary allegations of counsel misconduct to a distinct “primary” claim. Specific ally, 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 b een sufficiently raised by the petition: “Though [petitioner] does not directly s tate a claim for ineffective counsel . . ., we must construe his claims liberall y because he appears pro se. On that basis, we will address his contentions of coun sel failure as ineffective assistance.” Id. at 1328 n.1 (citations omitted). We follow the sa me course here. A more formidable procedural obstacle to Mr. Glover ’s motion may have been overlooked by the government. The present pro ceeding 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 t he potential abuse-of-procedure problem evident here, Mr. Glover is unable to justi fy 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 matt er to the sound discretion of the district court on remand. See generallySanders v. United States , 373 U.S. 1, 18 (1963); Hawkins v. Evans , 64 F.3d 543, 545-46 (10th Cir. 1995).-14-

The judgment of the United States District Court fo r the Northern District of Oklahoma denying defendants relief under 28 U.S. C. § 2255 is REVERSED, and the cause is REMANDED for further proceedings c onsistent with this order and judgment.