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The Honorable Howard F. Sachs, United States District Judge

for the Western District of Missouri. 

___________

No. 95-2306

___________

Steven W. St. John, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

United States of America, *

* [UNPUBLISHED]

Appellee. *

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 Submitted: December 21, 1995

 Filed: January 3, 1996 ___________

Before BOWMAN, BEAM, and MURPHY, Circuit Judges. ___________

PER CURIAM.

Steven W. St. John appeals from the district court's1 order

denying his 28 U.S.C. § 2255 motion to vacate his sentence. We

affirm.

St. John pleaded guilty pursuant to a plea agreement to

narcotics offenses, in violation of 21 U.S.C. §§ 841 and 846. The

plea agreement provided, inter alia, that the base offense level of

30 would be increased three levels under U.S.S.G. § 3B1.1(b),

because St. John "occupied a position of manager or supervisor of

a criminal activity that involved five or more participants or was

otherwise extensive"; and that St. John was entitled to a two-level

reduction under section 3E1.1, for acceptance of responsibility. 
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The presentence report (PSR) recommended a four-level

adjustment for St. John's role in the offense under section

3B1.1(a), because he was a leader, directing and controlling the

activities of others of a criminal activity involving five or more

persons. The government objected to the four-level increase. At

sentencing, the district court adopted the PSR, including the

characterization of St. John as a leader or organizer, and

sentenced St. John to 121 months (based on a Guidelines range of

121 to 151 months), 3 years supervised release, and a $6,000 fine.

St. John did not file a direct criminal appeal.

St. John moved to vacate his sentence, claiming he received

ineffective assistance of counsel when counsel failed to object to

the factual allegations in the PSR and failed to object to the

four-level increase under section 3B1.1(a). St. John asserted for

the first time that there were only four participants in the

conspiracy, and thus section 3B1.1(c) applied. 

Addressing the merits, the district court concluded St. John

was not entitled to section 2255 relief. The court concluded

counsel was not deficient for failing to argue for a two-level

adjustment under section 3B1.1(c), because St. John had admitted to

being a manager or supervisor in the plea agreement, or for failing

to argue for a three-level adjustment under section 3B1.1(b)

because such an argument could have jeopardized the two-level

decrease for acceptance of responsibility and St. John had conceded

in his section 2255 motion he "organized and recruited" two

participants. In addition, the court determined St. John was not

prejudiced because the government had advanced the same argument.

As for counsel's alleged failure to object to false factual

allegations in the PSR, the court concluded St. John had not set

forth any specific inaccuracies.

Because the district court addressed the merits of the
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ineffective-assistance claim, we do so as well. See Rogers v.

United States, 1 F.3d 697, 699 (8th Cir. 1993) (per curiam).

St. John's ineffective-assistance claim is governed by

Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires

a showing of both deficient performance and resulting prejudice.

We conclude, even if counsel was deficient in failing to object to

factual inaccuracies in the PSR, St. John has not proven prejudice.

St. John is not subject to a two-level adjustment under section

3B1.1(c), because he admitted in the plea agreement he was a

manager or supervisor of a criminal activity involving five or more

participants. In addition, St. John was not prejudiced by

counsel's failure to assert that he should not have received a

four-level adjustment under section 3B1.1(a), because the

government did so for him. Moreover, by leaving the argument for

the government to assert, counsel preserved St. John's acceptanceof-responsibility reduction. See U.S.S.G. § 3E1.1(a) & comment.

(n.1(a)) (defendant who falsely denies relevant conduct which

sentencing court determines to be true has acted in manner

inconsistent with acceptance of responsibility). 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.