* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### SEP 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. TRAVIS D. LEONARD,

Defendant-Appellant. No. 96-7096 (D.C. No. 95-CV-538-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Defendant filed his original motion pursuant to § 2 255 on November

9, 1995, prior to the effective date of the Antiter rorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, April 24, 1996. In Lindh v. Murphy , 117 S. Ct. 2059 (1997), the Supreme Court recentl y held that the Act’s amendments to Chapter 153 of Title 28, in cluding the amendments to 28 U.S.C. §§ 2253-2255, did not apply to noncapital ca ses pending on the effective date. Therefore, defendant’s application for a certificate of appealability pursuant to the amended § 2253 is dismissed. -2- Defendant appeals from the district court’s denial of his motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or corre ct his sentence. 1 Defendant was convicted of conspiracy, in violation of 21 U.S.C. § 846, with two objects: to possess with intent to distribute methamphetamine/amphetamine and/or attempt to manufacture methamphetamine; and possession with intent to distribute methamphetamine/amphetamine, in violation of 21 U.S .C. § 841(a)(1). This court affirmed the conviction on appeal, but remanded forresentencing. After remand, defendant again appealed, and this court affirmed. In this § 2255 motion, defendant raises several ins tances in which he alleges that he received ineffective assistance of counsel. First, he argues that his counsel was ineffective for failing to challenge th e sentencing guideline that the trial court applied in sentencing defendant. Next, defendant maintains that his attorney was ineffective because of his failure to request a charge on a lesser included offense. Finally, defendant argues ineffe ctiveness in his attorney’s failure to argue that the record contains insuffici ent evidence of “any amount of2 The government argues that this, and defendant’s other arguments in this

§ 2255 appeal, are procedurally barred because defe ndant did not raise them on direct appeal. The government fails, however, to a cknowledge that defendant’s allegations of error are couched in terms of ineffe ctive assistance of counsel, which this court has held is preferably raised in c ollateral proceedings. See United States v. Galloway , 56 F.3d 1239, 1242-43 (10th Cir. 1995). -3- amphetamine which could be produced by the laborato ry which was being assembled pursuant to the conspiracy,” Appellant’s Br. at 21. We review defendant’s claims of ineffective assistance of cou nsel in this § 2255 motion de
novo, see United States v. Cox , 83 F.3d 336, 340 (10th Cir. 1996), and we affirm. The sentencing court applied United States Sentenci ng Guideline (U.S.S.G.) § 2D1.1 in sentencing defendant. Defend ant argues that the court should have applied U.S.S.G. § 2D1.11, and that his attorney’s failure to make this argument rendered his assistance ineffective. 2 To prevail on a claim that his attorney was ineffective for failing to raise these issues, defendant must show both that his attorney’s performance fell below an objective standard of reasonableness and that the deficient performance w as prejudicial. See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). Defendant can not show either deficient performance or prejudice because the tria l court applied the correct guideline in sentencing defendant. Section 2D1.11 applies when a defendant is charged with violation of 21 U.S.C. § 841(d); the i ndictment delivered against defendant did not charge him under that section. D efendant was indicted for-4-

violation of 21 U.S.C. § 841(a), and the guideline appropriate to that section is § 2D1.1, the very guideline applied by the trial co urt. See United States v. Myers , 993 F.2d 713, 716 (9th Cir. 1993). Defendant’s att orney was not deficient in failing to argue application of U.S.S.G. § 2D1.11. Next, defendant complains that his counsel was inef fective for failing to request a jury charge for what he terms “the lesserincluded offense” of possession of listed chemicals with intent to manuf acture a controlled substance, in violation of 21 U.S.C. § 841(d). Defendant cite s no authority for his theory that § 841(d) is a lesser included offense of § 841 (a). It is clear that § 841(d) requires proof of an element that § 841(a) does not : possession of a listed chemical. See Schmuck v. United States , 489 U.S. 705, 716 (1989) (holding that where lesser offense requires an element not requir ed for greater offense, no lesser included offense instruction is required). Defendant was indicted for conspiracy to violate § 841(a)(1), and the jury charge accurately reflects the law in that regard. Defendant’s attorney was not const itutionally ineffective for failing to object to the jury charge. Finally, defendant argues that his attorney’s failu re to argue against the sufficiency of the evidence for amphetamine product ion fell below an objective standard of reasonableness. We do not reach this i ssue because the trial transcript is not part of the record before us, and, without the trial record, we are unable to-5-

review the evidence to determine if defendant’s att orney was ineffective for failing to raise the issue. In addition, we have n othing before us to indicate what amount of amphetamine and calculations were used to resentence defendant. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge