* This order and judgment is not binding precedent, e xcept under the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

### MAY 26 1998 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. WENDELL LAMONT WILLIAMS,

Defendant-Appellant. No. 97-6247 (D.C. No. CIV-97-599-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and HENRY , Circuit Judges.

After examining defendant’s brief and the appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument.-2-

Defendant Wendell Lamont Williams appeals the distr ict court’s denial of his motion to vacate, set aside or correct his sent ence, brought pursuant to 28 U.S.C. § 2255. Because defendant has not made a su bstantial showing of the denial of a constitutional right, we deny his appli cation for a certificate of appealability and dismiss the appeal. In February 1994, pursuant to a plea agreement, def endant pled guilty to one count of conspiracy to distribute crack cocaine in exchange for dismissal of the remaining counts of a superseding indictment. He was sentenced to 360 months’ incarceration, based on coconspirator testi mony linking him to the distribution of ninety-four ounces of cocaine base; evidence of his managerial role in the conspiracy; and his failure to take res ponsibility for his conduct. Defendant did not appeal. On April 21, 1997, defendant filed his § 2255 motio n, alleging his attorney was ineffective in failing to object to the amount of cocaine attributed to him, to his designation as a manager, and to the finding th at he did not take responsibility for his conduct. The district court denied the mot ion, finding that counsel’s decision not to object was neither deficient nor pr ejudicial. This appeal followed. Before maintaining this appeal, defendant must obta in a certificate of appealability by making “a substantial showing of t he denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Defendant’s claim of ineffective assistance does-3-

not meet this burden. To show his attorney was ine ffective in failing to object to the factors used in calculating his sentence, defen dant must demonstrate both that counsel’s performance fell below an objective stand ard of reasonableness and that the deficient performance was prejudicial. See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). Defendant has not showneither deficient performance or prejudice. The record makes clear that defendant’s attorney co nsidered challenging the amount of cocaine attributable to defendant butmade a tactical decision not to do so. See R. I, Plea Hearing Tr. dated Feb. 14, 1994, at 11. Further, defendant has not presented any evidence demonstrating that l ess than ninety-four ounces were involved. The court’s findings that defendanttook a managerial role and that he had not accepted responsibility are support ed by the record, and defendant has not shown how an objection would have been succ essful. Finally, in light of counsel’s stated strategy of obtaining a sentence r eduction based on defendant’s future cooperation, defendant has not shown the dec ision to refrain from objecting to the sentencing factors was anything but tactical

. We indulge in a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and presume that “under the circumstances, the challenged action might be consi dered sound trial strategy.” Strickland v. Washington , 466 U.S. 668, 689 (1984) (quotations omitted). A bsent-4-

evidence overcoming this presumption of effective r epresentation, we deny defendant’s application for a certificate of appeal ability. The appeal is DISMISSED. The mandate shall issue f orthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge