* This order and judgment is not binding precedent, e xcept under the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. CLIFTON ANDREW CARTER,

Defendant-Appellant. No. 96-7089 (D.C. No. 95-CV-228-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 May 15, 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 to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. 1 After resentencing, defendant was sentenced to 292 months of imprisonment on count 1 of the indictment, conspiring to violate 21 U.S.C. § 841(a)(1) in violation of 21 U.S.C. § 846; 120 months for violation of 21 U.S.C. § 841(d); and 60 months for violation of 18 U.S.C. § 1952. On direct appeal, t his court remanded for resentencing on count 1, directing that the new sentence be calculated based on possession and attempt to manufacture amphetamine, as opposed to the higher levels applicable to methamphetamine. After resent encing, this court affirmed. In this § 2255 appeal, defendant alleges ineffectiv e assistance of counsel with regard to several points. After de novo revie w of defendant’s claims, see United States v. Cox , 83 F.3d 336, 340 (10th Cir. 1996), we affirm. Defendant argues that the sentencing court should h ave applied U.S.S.G. § 2D1.11, and that his attorney’s failure to make t his argument rendered his2 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- assistance ineffective. 2 To prevail on a claim that his attorney was ineff ective, defendant must show both that his attorney’s performance fell below an objective standard of reasonableness and that the deficient p erformance was prejudicial.
See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). Defendant can show no prejudice resulting from his attorney’s fai lure to argue for application of § 2D1.11, because § 2D1.11(c)(1) provides that if the offense involved unlawful manufacture of a controlled substance or attempt to do so, § 2D1.1 should be applied if the resulting offense level is greater t han that determined under § 2D1.11(a). Next, defendant argues ineffective assistance of co unsel for failure to request a lesser included charge to the jury. The trial court properly charged the jury on violation of 21 U.S.C. §§ 841(a)(1) and 846 with regard to count 1, and it charged the jury on violation of 21 U.S.C. § 841(d) with regard to count 2. Defendant’s counsel was not ineffective for failing to request a charge on § 841(d) with regard to count 1. Defendant cites n o authority for his theory that § 841(d) is a lesser included offense of § 841(a). It is clear that § 841(d) requires-4-

proof of an element that § 841(a) does not: posses sion of a listed chemical. See Schmuck v. United States , 489 U.S. 705, 716 (1989) (holding that where less er offense requires an element not required for greate r offense, no lesser included offense instruction is required). Defendant’s argument regarding the distinction betw een d-methamphetamine and l-methamphetamine also has no merit. This court held, on direct appeal, that the case would be remanded f or resentencing using the offense levels relevant to amphetamine, which has alower base offense level than methamphetamine. Because defendant was not sentenc ed using the higher base offense level relating to methamphetamine, there ca n be no prejudice resulting from his attorney’s failure to argue that the government failed to prove possession and attempt to manufacture d-methamphetamine, as op posed to l-methamphetamine. Finally, defendant’s counsel was not ineffective fo r failing to object to the jury charge on conspiracy or the verdict forms. Th e conspiracy charge and the relating charges with regard to the objects of the conspiracy were adequately set forth. We find neither deficient performance nor p rejudice in this regard.-5-

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