* This order and judgment is not binding precedent, e xcept under the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

Defendant-Appellant. No. 96-7093 (D.C. No. 95-CV-157-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 April 4, 1995,

prior to the effective date of the Antiterrorism an d 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 recently held that the Act’s amendments to Chapter 153 of Title 28, including th e amendments to 28 U.S.C. §§ 2253-2255, did not apply to noncapital cases pen ding on the effective date. Therefore, defendant’s application for a certificat e 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 conspiracy to attempt to manufacture methamphetamin e; and possession with intent to distribute methamphetamine/amphetamine, i n violation of 21 U.S.C. § 841(a)(1). Defendant was also convicted of violating 18 U.S.C. § 1952. This court affirmed the convictions on appeal, but reman ded for resentencing. After resentencing, defendant again appealed, and this co urt affirmed. In this § 2255 motion, defendant raises several ins tances in which he alleges that he received ineffective assistance of counsel. We review defendant’s claims of ineffective assistance of counsel 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 court2 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- 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 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-4-

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. Defendant also argues that his attorney was ineffec tive for failing to object to the government’s lack of proof regarding the dis tinction between d-methamphetamine and l-methamphetamine. On directappeal, this court held that the case would be remanded for resentencing us ing offense levels relevant to amphetamine, which has a lower base offense level than methamphetamine. Because defendant was not sentenced using the highe r offense levels relating to methamphetamine, there can be no prejudice resultin g from his attorney’s failure to argue that the government failed to prove posses sion and attempt to manufacture d-methamphetamine, as opposed to l-meth amphetamine.3 We note that defendant did raise an issue on directappeal regarding the

credibility of Jarvis Wells, in which this court fo und no merit. It appears, however, that the credibility issue raised in this § 2255 appeal involves different specifics and individuals than the issue addressed on direct appeal. -5- Defendant’s counsel was not ineffective for failing to object to the jury charge on conspiracy or the verdict forms. The con spiracy charge and the relating charges with regard to the objects of the conspirac y were adequately set forth. We find neither deficient performance nor prejudice in this regard. Finally, defendant argues that he was denied due pr ocess because the court received perjured testimony at trial. We do not re ach this argument because defendant shows neither cause for failing to present this issue on direct appeal, nor prejudice resulting from the error. See Cook , 45 F.3d at 392. 3 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