* This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 20 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JACQUELINE LOU QUARTERMAN, Defendant-Appellant. No. 00-8038 (D. Wyo.) (D.Ct. No. 99-CV-1026)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

Appellant Jacqueline Lou Quarterman, a federal inma te appearing pro se ,1 Ms. Quarterman did not file an application for a certificate of appealability in the

district court, nor did the district court issue a certificate of appealability. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of appealability within thirty days after filing of the notice of appeal as a denial of a certificate.

-2- appeals the district court’s decision dismissing he r motion, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct her conviction and sentence. In so doing, Ms. Quarterman seeks a certificate of appeal ability to appeal the district court’s dismissal of her § 2255 motion. 1 We deny Ms. Quarterman a certificate of appealability and dismiss her appeal.

Ms. Quarterman was convicted on one count of conspi racy to distribute controlled substances in violation of 21 U.S.C. § 8 46, one count of distribution of LSD and aiding and abetting in violation of 21 U.S. C. § 841(a)(1) and 18 U.S.C. § 2, and one count of possession with intent to dis tribute methamphetamine and aiding and abetting in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. See United States v. Vaziri , 164 F.3d 556, 559 (10th Cir. 1999). At sentencin g, the trial court enhanced her sentences for obstruction of justice a nd possession of a firearm, and sentenced Ms. Quarterman to 108-month (or nine-year ) sentences on each count, to run concurrently. Id. at 562, 567-68. The facts surrounding Ms. Quarter man’s conviction and sentence are fully outlined in our d ecision relating to her direct2While government witnesses testified Ms. Quarterman sold them twenty-five

grams of methamphetamine, this is a conservative number considering Ms. Quarterman admitted to selling over seventy grams of methamphetamine. Vaziri, 164 F.3d at 560-62.

-3- appeal. In short, the government presented overwhe lming evidence at trial establishing Ms. Quarterman: 1) participated in a conspiracy to distribute LSD and at least five grams of methamphetamine, id. at 565-66; 2) distributed at least twenty-five grams of methamphetamine, 2 id. at 560-62; and 3) distributed at least 106 hits of LSD, id. at 560.

Following her direct appeal, Ms. Quarterman filed h er § 2255 motion, raising a plethora of issues–most of which we previ ously addressed in her direct appeal. In a 129-page brief in support of her moti on, Ms. Quarterman also raised numerous ineffective assistance of counsel claims c oncerning her criminal prosecution, trial, sentencing, and appeal. While raised as ineffective assistance of counsel claims, some of these claims concerned t he same issues she raised and we addressed in her direct appeal.

The district court assigned the matter to a magistr ate judge who issued an exhaustive and well-reasoned “Report and Recommendation For Order Ruling on Motion Attacking Sentence Pursuant to 28 U.S.C. Sec tion 2255.” First, the-4-

magistrate judge declined to address issues already directly raised and addressed in Ms. Quarterman’s direct appeal, except those rai sed as ineffective assistance of counsel claims. Ultimately, the magistrate judge d etermined Ms. Quarterman’s counsel did not perform deficiently or that such pe rformance did not prejudice her case. The magistrate judge also reviewed and rejec ted various other issues, unrelated to Ms. Quarterman’s ineffective assistanc e of counsel claims, which she raised for the first time in her § 2255 motion. Ac cordingly, the magistrate judge recommended dismissal of Ms. Quarterman’s § 2255 mo tion.

In response, Ms. Quarterman filed voluminous object ions to the magistrate judge’s Report and Recommendation. After consideri ng Ms. Quarterman’s objections and conducting a de novo review of the record, the district court issued an “Order Adopting Magistrate Judge’s Report and Re commendation.” In addition to adopting the Report and Recommendation, the district court also conducted a thorough analysis of Ms. Quarterman’s n umerous objections, many of which either concerned issues she did not raise bef ore the magistrate judge or that related directly to the magistrate judge’s ruling. After rejecting Ms. Quarterman’s claims and objections, the district court dismissed her motion.

On appeal, the crux of Ms. Quarterman’s argument ce nters on the validity3 Ms. Quarterman fails to assert any of numerous ineffective assistance of counsel

claims she raised in her § 2255 motion and supporting brief. The only statement possibly relating to an ineffective assistance of counsel claim concerns her request for an oral argument on appeal, in which she summarily states she “has NEVER had her day in court, having been advised to NOT testify at the trial.” Despite Ms. Quarterman’s pro sestatus, this court will not sift through her brief in an attempt to construct legal arguments or theories for her, see Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997) nor consider unsupported, conclusory allegations on appeal, see Wise v. Bravo , 666 F.2d 1328, 1333 (10th Cir. 1981).

-5- of her indictment and the general verdict used at h er trial – a claim she raised in her direct appeal. 3 See Vaziri, 164 F.3d at 566-568. In her direct appeal, Ms. Quarterman contended the jury impermissibly returne d a “general verdict” on the conspiracy charge in the indictment. She argued a “general verdict” was impermissible because the charge included four diff erent controlled substances,
i.e. , LSD, methamphetamine, cocaine and marijuana. 164 F.3d at 565-67. Although we previously addressed and rejected this claim, Ms. Quarterman asks us to review it again based on an intervening chang e in the law which she describes as a “watershed change in constitutional law.” In support, she relies on the United States Supreme Court’s decisions in Apprendi v. New Jersey , ___ U.S. ___, 120 S. Ct. 2348 (2000), and Jones v. United States , 526 U.S. 227, 119 S. Ct. 1215 (1999), which post-date her direct appeal. Sp ecifically, she claims these cases support her contention the indictment and gen eral verdict used at trial were improper because they failed to: 1) list the type and amount of drugs attributed to-6-

her, or 2) mention any potential application of sen tencing enhancements for obstruction of justice and firearm possession. Und er Apprendi and Jones , she claims the amount of drugs and facts supporting any enhancement must be charged in the indictment, submitted to the jury, a nd proven beyond a reasonable doubt before the court may enhance her sentence. F inally, Ms. Quarterman claims she is only subject to the maximum possible sentenc e for marijuana which is sixty months or five years because the jury returned a ge neral verdict of guilty on the conspiracy charge, which included a charge relating to marijuana.

“We review the district court’s legal rulings on a § 2255 motion de novo and its findings of fact for clear error.” United States v. Kennedy , 225 F.3d 1187, 1193 (10th Cir. 2000) (quotation marks and alterati on omitted). As the magistrate judge aptly pointed out in the Report and Recommend ation, Ms. Quarterman may not use collateral review to receive a “second bite of the apple” for issues previously decided by this Court, “absent interveni ng change in [the] law.” United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994) (citing United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989)).

With these standards in mind, we clarify that Ms. Q uarterman’s LSD and methamphetamine convictions under 21 U.S.C. § 841(a ) were based solely on-7-

those individual substances, and did not include ma rijuana. Vaziri, 164 F.3d at 559. Thus, Ms. Quarterman’s contention she can onl y receive a five-year sentence for a marijuana charge relates only to her conspiracy conviction. Id. at 566. However, we disagree with Ms. Quarterman’s co ntention. In the direct appeal, we explained Ms. Quarterman actively partic ipated in the conspiracy, as demonstrated by her and her co-defendants’ agreemen ts, sharing of information and cooperation in obtaining and distributing metha mphetamine and LSD. Id. at 565-66. We pointed out that one of her co-defendan ts clearly obtained at least five ounces of methamphetamine as part of the consp iracy. Id. at 561, 565. In addition, we noted the same co-defendant supplied a t least 106 hits of LSD to Ms. Quarterman, which she sold to an informant. Id. at 560, 566. Our review of the record shows no evidence establishing Ms. Quarterma n was involved in a conspiracy to sell marijuana. Under these circumst ances, it is reasonable to conclude the jury convicted Ms. Quarterman’s for co nspiracy relating either to possession and distribution of methamphetamine or L SD, and not a conspiracy relating to marijuana.

Having ascertained the specific drugs on which Ms. Quarterman received each conviction, we next look at whether some inter vening change of law has occurred sufficient to overturn our determination i n her direct appeal. In so4The Supreme Court’s decision in Apprendi follows its decision in Jones , expands the constitutional concerns voiced therein, and is the most relevant to our discussion. While we direct our attention primarily to the Apprendi decision, we note that Ms. Quarterman’s claim fails under the principles announced in either Apprendi or Jones

.

5We note that at least one circuit court has declined to apply Apprendi retroactively on collateral review. See In re Joshua , 224 F.3d 1281, 1283 (11th Cir. 2000).

6Section 841(b)(1)(C) is a catch-all provision for any quantity of schedule I or II drugs. Therefore, the amount of the drug charged need not be proven.

-8- doing, we conclude Ms. Quarterman fails to meet herburden of showing any intervening change in the law which affects her sen tence. Specifically, she fails to present a colorable Apprendiclaim. 4

The Court in Apprendiheld that “[o]ther than the fact of a prior convic tion, any fact that increases the penalty for a crime bey ond the prescribed statutory maximum must be submitted to a jury, and proved bey ond a reasonable doubt.” 120 S. Ct. at 2362-63. 5 In applying Apprendi , many of our sister courts have held a sentence is valid, even if the drug quantity is n ot proven to a jury, if the sentence does not exceeds the statutory maximum sen tence allowed under 21 U.S.C. § 841(b)(1)(C). 6 See United States v. Keith , 230 F.3d 784, 786 (5th Cir. 2000); United States v. Doggett , 230 F.3d 160, 165 (5th Cir. 2000); United States v. Aguayo-Delgado , 220 F.3d 926, 934 (8th Cir.), cert. denied, ___ S. Ct. ___,-9-

2000 WL 1634209 (U.S. Nov. 7, 2000) (No. 006746); United States v. Sheppard, 219 F.3d 766, 769 n.3 (8th Cir. 2000). Thus, where the sentence is less than the maximum sentence allowable by law, the sentence may stand. It follows the same principles apply where the facts supporting the enh ancements were not proven at trial, but the sentence is less than the maximum se ntence allowable by law.

In applying these principles, we begin with an exam ination of Ms. Quarterman’s convictions relating to the drug LSD –a Schedule I controlled substance. See 21 U.S.C. § 812(c), Schedule I(c)(9). In this cas e, Ms. Quarterman received a conviction under 21 U.S.C. § 841(a) for one count of distribution of LSD, but no specific quantity conce rning the weight of the LSD was proven to the jury, other than the facts that 1 06 hits were sold. Similarly, assuming Ms. Quarterman’s received her conspiracy c onviction under 21 U.S.C. § 846 for distribution of LSD, we note an unidentif ied quantity of LSD was involved in the conspiracy. Under 21 U.S.C. § 841( b)(1)(C), the statutory maximum sentence for either convictions is not more than twenty years, regardless of whether quantity is proven at trial. See 21 U.S.C. §§ 841(b)(1)(C), 846; see also Doggett , 230 F.3d at 165 (applying § 841(b)(1)(C) to consp iracy charge); Aguayo-Delgado , 220 F.3d at 933-34 (same). Thus, Ms. Quarterman’ s concurrent nine-year sentences are valid under Apprendibecause they do not-10-

exceed the statutory maximum sentence of twenty yea rs provided for under 21 U.S.C. § 841(b)(1)(C). Under these circumstances, we conclude the trial court’s application of the two enhancements at issue does n ot invalidate Ms. Quarterman’s sentences on these convictions, even t hough the quantity of LSD and facts supporting the enhancements were not prov en to a jury at trial.

With respect to Ms. Quarterman’s convictions involv ing methamphetamine, her Apprendiargument also fails. In this case, the quantity o f methamphetamine need not be proven because Ms. Quarterman’s nine-ye ar sentence for possession with intent to distribute and distribution of metha mphetamine – a Schedule II controlled substance – falls within the statutory m aximum sentence of no more than twenty years for distribution of any quantity of methamphetamine. See 21 U.S.C. §§ 812(c), Schedule II(c), and 841(b)(1)(C); 21 C.F.R. § 1308.12(d)(2). The same is true if her conspiracy conviction under21 U.S.C. § 846 related to distribution of methamphetamine because the amount of methamphetamine need not be proven. Thus, even if the facts supporting the two enhancements were not proven to the jury, Ms. Quarterman’s sentences do n ot exceed the statutory maximum sentence. Under the circumstances presente d on appeal, Ms. Quarterman clearly fails to present a colorable Apprendiclaim sufficient to warrant overturning her enhanced sentences.-11-

In order for this court to grant a certificate of appealability, Ms. Quarterman must make a substantial showing of the d enial of a constitutional right as required under 28 U.S.C. § 2253(c)(2). Sh e fails to do so. Accordingly, for the reasons stated herein, and for substantiall y the same reasons in the magistrate judge’s October 22, 1999 Report and Reco mmendation, and the district court’s May 24, 2000 Order, we deny Ms. Quarterman’ s request for a certificate of appealability and DISMISS her appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge