* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and 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

APR 14 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDRE DECARLOS KING,

Defendant-Appellant.

Case No. 97-6201

(D.C. CV-97-743-C)

(Western District of Oklahoma)

 

ORDER AND JUDGMENT *

 

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

 

After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially 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 argument.

Andre DeCarlos King seeks to appeal the district court’s order denying his

motion to vacate, set aside, or modify his sentence pursuant to 28 U.S.C. § 2255. 
2

For the reasons set forth below, we deny Mr. King’s application for a certificate

of appealability.

Mr. King pleaded guilty to a one-count information alleging that he

violated 21 U.S.C. § 841(a)(1) by knowingly and intentionally possessing with the

intent to distribute approximately 84 grams of cocaine base and 94.5 grams of

cocaine. Following the entry of his guilty plea, the district court sentenced him to

a term of imprisonment of 116 months. Mr. King did not appeal his conviction or

his sentence.

On May 6, 1997, Mr. King filed a § 2255 motion alleging that the district

court imposed his sentence in violation of his Fifth Amendment right to due

process and his Sixth Amendment right to effective assistance of counsel. In

particular, Mr. King alleged, his attorney had failed “to hold the government to its

burden of proving by a preponderance of the evidence that the substance used for

sentencing purposes was ‘crack’ as opposed to another form of cocaine base.” 

Rec. doc. 16, at 5. Mr. King cited the deficient performance of his counsel as the

reason for his failure to raise this issue in a direct appeal of his sentence. See id.

at 6.

In denying Mr. King’s motion, the district court reasoned as follows: 

The possession with intent to distribute crack, rather

than powder, cocaine, is evident from the affidavit

supporting the initial complaint and the transcript of 

proceedings at the entry of the guilty plea. The
3

presentence report clearly specified amounts of both

cocaine powder and cocaine base on which defendant’s

sentence was calculated and no objection was made to

either the amounts, the type of cocaine involved, or the

resulting offense level. 

Rec. doc. 18 at 2 (District Court Order filed May 20, 1997). Accordingly, the

court held, Mr. King’s counsel was not deficient. The court subsequently denied

Mr. King’s application for a certificate of appealability. See id. doc. 22. 

In seeking a certificate of appealability from this court, Mr. King again

argues that he received ineffective assistance of counsel because his attorney did

not challenge the government’s failure to prove that the substance he possessed

was crack cocaine. He also contends that his counsel was ineffective for failing

to request the district court to depart downward from the Sentencing Guidelines. 

According to Mr. King, this ineffective assistance excuses his failure to file a

direct appeal of his sentence and entitles him to relief under § 2255. 

Mr. King’s arguments lack merit. As the district court noted, a defendant’s

failure to raise an issue on direct appeal bars him from raising the issue in a §

2255 motion “unless he can show cause excusing his procedural default and

actual prejudice resulting from the errors of which he complains, or can show that

a fundamental miscarriage of justice will occur if his claim is not addressed.” 

Rec. doc. 18, at 2 ( quoting United States v. Cook , 997 F.2d 1312, 1320 (10th Cir.

1993)). In light of his guilty plea and his admissions at the change of plea
4

proceedings, we conclude that Mr. King has failed to support his allegation that

he received ineffective assistance of counsel and has therefore failed to establish

either cause and prejudice or a fundamental miscarriage of justice.

“[A] defendant who makes a counseled and voluntary guilty plea admits

both the acts described in the indictment and the legal consequences of those

acts.” United States v. Allen , 24 F.3d 1180, 1183 (10th Cir. 1994). Here, the

record indicates that Mr. King pled guilty to an information that alleged that he

possessed with the intent to distribute both cocaine and cocaine base. Although

the information itself does not specifically allege that the “cocaine base” at issue

was “crack”, we note that, at the change of plea proceedings, in response to the

prosecutor’s questions regarding the factual basis for his guilty plea, Mr. King

admitted that law enforcement agents had discovered “ approximately 84 grams of

crack cocaine and approximately 94-and-a- half grams of powder cocaine” while

executing a search warrant at his home. See Tr. of Hr’g dated March 12, 1993,

at 12 (emphasis added). 

In determining the facts that a defendant has admitted by pleading guilty, a

court may consider not only the language of the charging document but also a

defendant’s statements in a plea agreement and in change of plea proceedings. 

See United States v. Bush , 70 F.3d 557, 562-63 (10th Cir. 1995) (considering,

inter alia , defendant’s statements in plea agreement and change of plea
5

proceedings in concluding that the object of the charged conspiracy was to

distribute cocaine base rather than cocaine powder), cert. denied , 516 U.S. 1082

(1996). Accordingly, through his guilty plea and his answers at the change of

plea hearing, Mr. King has admitted that he possessed with the intent to distribute

84 grams of crack cocaine along with approximately 94.5 grams of cocaine

powder. In light of Mr. King’s admissions, his counsel was not ineffective in

declining to object to the government’s lack of evidence regarding the substances

involved. 

As to Mr. King’s argument regarding downward departure, we note that he

was sentenced to the statutory minimum and that the district court informed him

of the minimum sentence at the change of plea proceedings. See Tr. of Hr’g

dated March 12, 1993 at 9. Mr. King does not argue that any of the very limited

circumstances authorizing a sentencing court to depart downward from the

minimum sentence established by statute are present here. See, e. g. , 18 U.S.C. §

3553(e) (authorizing departure below the statutory minimum upon the

government’s motion that the defendant provided substantial assistance in the

investigation or prosecution of another). Mr. King’s counsel was not ineffective

in failing to make a fruitless request for downward departure.
6

Accordingly, we conclude that Mr. King has failed establish either cause

and prejudice or a fundamental miscarriage of justice. Because he has failed to

make “a substantial showing of the denial of a constitutional right,” see 28 U.S.C.

§ 2253(c)(2), we therefore deny Mr. King’s application for a certificate of

appealability and dismiss this appeal. 

The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry

Circuit Judge