* This order and judgment is not binding precedent, e xcept under the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

### JUN 4 1999 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ANDREW JACKSON WHITMORE, II, Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. KENNETH N. POWELL,

Defendant-Appellant. No. 98-5129 (D.C. No. 97-CV-51-E) (N.D. Okla.)

No. 98-5133 (D.C. No. 97-CV-249-E) (N.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , McKAY , and LUCERO , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. SeeFed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument. Andrew Whitmore and Kenneth Powell were codefendant s in a multi-defendant trial and were convicted of conspir acy to distribute marijuana in violation of 21 U.S.C. § 846. They were sentenc ed to 360 and 292 months, respectively, followed by five-year periods of supe rvised release. Their convictions and sentences were affirmed on appeal. United States v. Powell , 982 F.2d 1422 (10th Cir. 1992). Both defendants fi led motions pursuant to 28 U.S.C. § 2255 to vacate, correct, or set aside their sentences. The district court denied the motions and denied their requests for a certificate of appealability. Both defendants have applied for a certificate of appealability in order to appeal the district court’s denial of their § 2255 motions. Because neither defendant makes a substantial showing of the denial of a constitutional right,

see 28 U.S.C. § 2253(c)(2), we must deny their applicat ions for certificates of appealability.-3-

Defendant Whitmore makes the following arguments onappeal: (1) he received ineffective assistance of counsel because his attorney did not object to the instruction to the jury regarding the elements of conspiracy and did not move to suppress the testimony of witnesses who were pro mised leniency in exchange for their testimony; (2) the district court incorre ctly calculated the quantity of drugs for sentencing purposes; and (3) the districtcourt erred in enhancing his sentence for possession of a firearm. Defendant Po well makes two arguments on appeal: (1) his counsel was ineffective for fai ling to object to testimony by witnesses who were offered leniency in exchange fortheir testimony; and (2) the district court erred in basing his sentence on the quantity of drugs calculated in the pre-sentence investigation report because that calculation was inaccurate. To prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his defense. See Strickland v. Washington , 466 U.S. 668, 687-88 (1984). We have reviewed th e jury instruction objected to by defendant Whitmore, and we agree with the district court that failure to object to the instruction didnot constitute deficient performance by defendant’s attorney because the ins truction accurately stated the necessary elements of conspiracy. Further, even if the instruction had warranted objection, there was no prejudice. See Powell, 982 F.2d at 1430 (holding that-4-

there was more than sufficient evidence to connect defendant Whitmore to the conspiracy). Both defendants argue that their attorneys were ine ffective because they did not move to suppress the testimony of witnesses who testified in exchange for leniency. Neither defendant raised this argument b efore the district court, and we will not consider it for the first time on appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). We note, how ever, that defendants’ argument has been foreclosed by this court’s en banc decision in United States v. Singleton , 165 F.3d 1297, 1298 (10th Cir.), petition for cert. filed (March 31, 1999) (No. 98-8758). Next, both defendants complain that the district co urt erred in calculating the quantity of drugs used to arrive at their sente nces under the sentencing guidelines. On direct appeal, defendants argued th at the drug quantity was miscalculated as a result of the district court adopting the probation officer’s estimate based on an average amount over two years. We considered defendants’ argument alleging error in the drug quantity calcul ation, and we held that we would “not disturb the district court’s quantity determination.” Powell , 982 F.2d at 1435. The district court was correct in findingthat this claim cannot be considered in either defendants’ § 2255 proceeding because it was addressed on direct appeal. See United States v. Cox , 83 F.3d 336, 342 (10th Cir. 1996).1 In his reply to the government’s response to his § 2255 motion before the

district court, defendant Whitmore argued that inef fective assistance of his counsel was the cause for his failure to raise the firearm enhancement issue on direct appeal. On appeal, however, defendant makes a straight argument that the district court erred in accepting the witness testi mony upon which the enhancement was based, and, therefore, the enhancem ent was error. He does not contend that he failed to raise the issue because h is counsel was ineffective. -5- Finally, defendant Whitmore alleges error in the di strict court’s application of a two-point enhancement under the sentencing gui delines for possession of a firearm. Defendant did not raise this argument in his direct appeal. We agree with the district court that this claim is procedur ally barred because it should have been raised on direct appeal. See Cox , 83 F.3d at 341. 1 Neither defendant has made a substantial showing of the denial of a constitutional right, and, therefore, their appli cations for a certificate of appealability are DENIED. Accordingly, the appeals in both 98-5129 and 98-5133 are DISMISSED. Defendant Powell’s motion t o proceed without prepayment of fees or costs is DENIED as moot. The mandate shall issue forthwith. Entered for the Court

John C. Porfilio Circuit Judge