1 United States Court of Appeals,

Fifth Circuit.

No. 94-10880.

UNITED STATES of America, Plaintiff-Appellee,

v.

William Henry WALKER, Jr., Defendant-Appellant.

Nov. 9, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

William Henry Walker filed a motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. The district court

dismissed Walker's motion with prejudice. We affirm.

I. FACTS

The defendant, Walker, was charged, with two codefend ants,

with possession of methamphetamine with intent t o distribute,

possession of a precursor chemical, phenylacetone, with the intent

to manufacture a controlled substance, and conspirac y to commit

each of these offenses. Walker pled guilty to one count of

possession with intent to distribute. In the plea agreement, the

parties agreed that 14 years incarceration would be an appropriate

disposition of the case.

The presentence report (PSR) reveals that from the latter part

of 1988 through the ea rly part of 1989, confidential informants

working with th e Drug Enforcement Administration (DEA) made

pur chases of methamphetamine from Walker and his codefendant1 According to the PSR, a chemist employed by the DEA

estimated that 11 gallons of phenylacetone would produce

approximately 37 kilograms of methamphetamine.

2 Fernando Reyna on six separate occasions. The PSR also reveals

that Walker, Reyna, and Donald Ray Lampkin were observed unloading

trash from Walker's vehicle at a mini-storage complex where 11

gallons of phenylacetone were discovered in a storage unit rented

to Reyna. 1 Although Walker objected to this finding prior to

sentencing, the probation officer's response indicates that a

witness had positively identified Walker as one of the individuals

with Reyna and that Walker was listed on the lease as one of the

persons having access to the storage unit rente d by Reyna. The

record indicates that the necessary witness was prepared to testify

at sentencing.

Using the version of t he sentencing guidelines in effect on

June 15, 1988, the probation officer converted the methamphetamine

and phenylacetone to equivalent amounts of cocaine to determine the

appropriate base offense level. The calculations produced a 442

gram weight equivalen t for the methamphetamine and a 15,375 gram

weight equivalent for the phenylacetone. Based on these

quantities, a two-level incre ase for obstruction of justice, and

Walker's criminal history, the PSR proposed a guideline sentencing

range of 235 to 293 months. The maximum penalty allowed by the

relevant offense statute was 240 months. Walker filed numerous

objections to the PSR.

Prior to the sentencing h earing on May 24, 1991, the

gover nment offered not to use the amounts of phenylacetone at3

sentencing if Walker agreed to stipulate to the amoun ts of

methamphetami ne involved and drop his objections to the PSR.

Walker concedes on appeal that his attorney presented this offer to

him immediately before the sentencing hearing and that he agreed to

the proposal.

At the sentencing hearing, the parties stipulated that the

amount of methamphetamine to be c onsidered in sentencing was

between 400 and 700 grams and that that amount resulted in a base

offense level of 28. The parties also stipulated that this change

resulted in a lower guidelines sentencing range of 121 to 151

months imprisonment. At the judge's questioning, Walker expressed

his agreement with the amount of drugs involved. The district

court sentenced Walker to 144 months imprisonment.

Subsequently, it was discovered that the 1990 edition of the

sentencing guidelines was used at sentencing. Walker filed an

unopposed motion to c orrect his sentence using the guidelines in

effect at the time of the off e nse, 1988. Because the 1988

guidelines resulted in a more favorable sentencing range of 97 to

121 months, the motion was granted and Walker was given a corrected

sentence of 121 months. Walker also filed a second motion to

correct sentence, apparently without stating a fac tual or legal

basis. This motion was denied, and the denial was upheld on

appeal.

On April 4, 1994, Walker filed the instant motion to vacate,

or correct his sentence under 28 U.S.C. § 2255. Walker contended

that the amount of methamphetamine used in sentencing was incorrect2 Walker points out that the lab reports reflect a gross

weight of 454 grams methamphetamine which included the weight of

a plastic cup, plastic bags, and paper towels. The correct

amount of methamphetamine, Walker asserts, is the 221 gram net

weight reported in the PSR.

4 and was not supported by the lab reports. 2 In addition, Walker

contended that his agreement with the incorrect amount was a result

of inef fective assistance of counsel. The magistrate judge

recommended that the motion be dismissed with preju dice and the

relief sought denied. The district judge adopted the magistrate's

findings and recommendations and dismissed Walker's motion with

prejudice without an evidentiary hearing. This appeal followed.

On appeal, Walker claims that his agreement with the stipulation at

sentencing and the alleged incorrect sentence a re the result of

ineffective assistance of counsel.

II. DISCUSSION

This Court has noted repeatedly that "[r]elief under 28

U.S.C. § 2255 is reserved for trans gressions of constitutional

rights and for a narrow range of injuries that could not have been

raised on direct appeal and would, if condoned, result in a

complete miscarriage of justice." U nited States v. Acklen, 47 F.3d

739, 741 (5th Cir.1995). "Because a challenge under section 2255

"may not do s e rvice for an appeal,' a movant may not raise

constitutional or jurisdictional issues for the first time on

collateral re view without establishing "both "cause" for his

procedural default and "actual prejudice" resulting f rom the

error.' " I d. at 741-42 (quoting United States v. Shaid, 937 F.2d

228, 231-32 (5th Cir.1991) (en banc), cert. denied, 502 U.S. 1076,5

112 S.Ct. 978, 117 L.Ed.2d 141 (1992)).

A district court's calcu lation under or application of the

sentencing guidelines standing alone is not the type of error

cognizable under section 2255. However, a defendant's claim of

ineffective assistance of counsel does give rise to a

constitutional issue. In addition, absent unusual circumstances,

ineffective assistance of counsel, if shown, is sufficient to

establish the cause and prejudice necessary to overcome a

procedural default. Acklen, 47 F.3d at 742.

To establish ineffective assistance of counsel, Walker must

allege and prove that counsel's performance was deficient and that

the d eficient performance prejudiced his defense. S trickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"An attorney' s performance, which enjoys a strong presumption of

adequacy, is deficient if it is objectively unreasonable." A cklen,

47 F.3d at 742. "With respect to prejudice in the context of

n oncapital sentencing, the habeas court must determine whether

there is a prob ability that but for counsel's deficiency, the

defendant's sentence would have been si gnificantly less harsh."

Id. Walker was not given an opportunity to establish his

ineffective assistance claim at an evidentiary hearing. However,

if on this record we can conclude as a matter of law that Walker

cannot establish one or both of the elements necessary to establish

his constitutional claim, then an evidentiary hearing is not

necessary and we may affirm. Acklen, 47 F.3d at 743-44.

The record indicates that defense counsel agreed to stipulate6

to the amount of methamphetamine proposed by the government because

possession of a large quantity of phenyl acetone also could have

b een considered in sentencing. Considering the sentencing range

proposed by the PSR, defense counsel's agreement to the stipulation

was objectively reasonable. In addition, the prejudice Walker

claims to have suffered rests solely on the calculation of his base

offense level as it relates to the al leged amount of

methamphetamine. Walker is unable to show that he suffered any

prejudice when we consider the relevant conduct eliminated by

stipulation. If the phenylacetone possessed by Walker and his

codefendants had been considered at sentencing, Walker's term of

imprisonment could have been double the term finally imposed.

Under the circumstances, we hold, as a matter of law, that Walker

could not est ablish ineffective assistance of counsel, and that,

therefore, an evidentiary hearing was not necessary.

III. CONCLUSION

For the reasons given above, the judgment of the district

court dismissing Walker's 2255 motion with prejudice is AFFIRMED.