* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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 

### DEC 31 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. WILLIAM McILROY, Defendant-Appellant. No. 96-2219 (D.C. No. CIV-94-1163-JC) (D. N.M.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.
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.
William McIlroy appeals from the district court's d enial of his motion to1 Mr. McIlroy's motion to proceed in forma pauperis is granted.
-2- vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. 1
Mr. McIlroy was convicted by a jury of conspiracy t o manufacture more than 500 grams of amphetamine, and aiding and abett ing, in violation of 21 U.S.C.§ 841(a)(1) and (b)(1)(C), 21 U.S.C. § 846, and 18 U.S.C. § 2, and of the manufacture of more than 500 grams of amphetamine, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. He was sentenced to 151 months imprisonment on each count to run concurrently. The facts of Mr. McIlroy's case are detailed in United States v. Langston , 970 F.2d 692, 695-97 (10th Cir.), cert. denied, 506 U.S. 965 (1992), where this court affirmed Mr. McIlroy's conviction, along with those of his co-conspirators.
In his original § 2255 motion, Mr. McIlroy contende d he received a disparate sentence in violation of both his due pro cess rights and equal protection of the law. The magistrate judge determined this c laim was procedurally barred because Mr. McIlroy had failed to raise it on direc t appeal and could not show cause for his procedural default and actual prejudi ce resulting from the alleged-3-

errors, nor could Mr. McIlroy show a fundamental mi scarriage of justice if the claim was not addressed. See United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994).
In a supplemental brief in support of his § 2255 mo tion, Mr. McIlroy raised claims of prosecutorial misconduct and ineffective assistance of counsel. The magistrate judge considered these claims and amende d his findings, concluding the prosecutorial misconduct claim also was procedu rally barred under United States v. Frady , 456 U.S. 152 (1982), and the ineffective assistan ce claim failed to meet the standard articulated in Strickland v. Washington , 466 U.S. 668 (1984). The magistrate judge recommended Mr. McIlroy's moti on be denied. After a de

novo review of Mr. McIlroy's objections, the district c ourt adopted the findings and recommendation of the magistrate judge, and den ied the § 2255 motion. Mr. McIlroy appeals the district court's conclusions re garding his ineffective assistance of counsel and prosecutorial misconduct claims.

We review a claim of ineffective assistance of coun sel de novo
. Hoxsie v. Kerby , 108 F.3d 1239, 1245 (10th Cir.), cert. denied, 118 S. Ct. 126 (1997). To prevail, Mr. McIlroy must meet the two-prong test s et forth in Strickland . First, he must show his counsel's performance fell below an objective standard of-4-

reasonableness. Strickland, 466 U.S. at 687-88. Second, he must show the deficient performance of counsel resulted in prejud ice to his defense. Id. at 687. There is a "strong presumption" counsel's performan ce falls within the range of "reasonable professional assistance." Id. at 689.
The gravamen of Mr. McIlroy's ineffective assistanc e claim is that his trial counsel failed to raise a defense based on Mr. McIl roy's alleged withdrawal from the conspiracy to manufacture amphetamine. Accordi ng to the evidence adduced at trial, on or about July 6, 1989, Mr. McIlroy and several co-conspirators went to an isolated ranch property to operate an amphetamin e laboratory. Mr. McIlroy agreed to produce amphetamine and helped to oversee the manufacturing process. On July 11, 1989, when the conspirators were enteri ng the "finishing process" stage of manufacturing the amphetamine, according t o Mr. McIlroy, he opted to discontinue his participation, left the ranch, and ceased all communication with his fellow conspirators. Mr. McIlroy now contends his trial counsel was ineffective in failing to raise a withdrawal defens e in reliance on United States v. Parnell , 581 F.2d 1374 (10th Cir. 1978), cert. denied, 439 U.S. 1076 (1979).

In Parnell , we stated that "[i]n order to withdraw from a con spiracy an individual must take affirmative action, either mak ing a clean breast to the2The government contends Mr. McIlroy did not withd raw from the

conspiracy, but fled from fear of discovery.
-5- authorities or communicating his withdrawal in a manner reasonably calculated to reach co-conspirators." 581 F.2d at 1384. Assumin g arguendo that Mr. McIlroy did in fact withdraw from the conspiracy when he le ft the ranch during the finishing process, 2 we must further inquire what his withdrawal would have accomplished with respect to the charges against hi m. See United States v. Gonzalez , 797 F.2d 915, 917 (10th Cir. 1986).
In order to prove a defendant is guilty of a crimin al drug conspiracy as a principal under 21 U.S.C. § 846, the government mus t prove two or more persons agreed to violate the law; the defendant knew the e ssential objectives of the conspiracy; and the defendant knowingly and voluntarily became part of the conspiracy. Langston , 970 F.2d at 705. To be guilty of aiding and abetting a drug conspiracy under 18 U.S.C. § 2, the defendant must associate himself with the venture, participate in it as something he wish es to bring about, and seek by his action to make it succeed. Id . (citations omitted). The government must further prove "'the commission of the offense by so meone and the aiding and abetting by the defendant so charged.'" Id . (quoting Roth v. United States , 339 F.2d 863, 865 (10th Cir. 1964)).-6-

Once any conspirator commits an overt act in furthe rance of the object of the agreement, "the crime of conspiracy is complete ; and no member of the conspiracy can withdraw from that crime." Gonzalez , 797 F.2d at 916. As we noted in Gonzalez , "when a withdrawal does occur, in the sense of di sassociation from the acts of a conspiracy, the withdrawing cons pirator is exonerated only with respect to future acts." Id . at 917 (emphasis added). Given that Mr. McIlroy had already agreed to manufacture and had participated in the manufacture of amphetamine priorto his departure from the ranch, his withdrawal wo uld not absolve him of the either the earlier completed con spiracy or of the manufacture of amphetamine. See Langston , 970 F.2d 706-07 (detailing sufficiency of the evidence of conspiracy against Mr. McIlroy).

Since a withdrawal defense would have been of no ai d to Mr. McIlroy, counsel did not act unreasonably in choosing not to raise a futile defense that would have limited significantly his strategic opti ons. See Strickland, 466 U.S. at 690 ("strategic choices made after thorough investi gation of law and facts relevant to plausible options are virtually unchall engeable"). Consequently, failure to raise the withdrawal defense resulted in no prejudice to Mr. McIlroy.3 Since Mr. McIlroy failed to allege sufficient fac ts to support his

ineffective assistance of counsel claim, we conclud e no evidentiary hearing is required. See Lasiter v. Thomas , 89 F.3d 699, 702-03 (10th Cir.), cert. denied, 117 S. Ct. 493 (1996).
-7- Thus, Mr. McIlroy's ineffective assistance of couns el claim is without merit. 3
Mr. McIlroy's claim of prosecutorial misconduct sim ilarly relies on the same misapprehension of the impact of his alleged w ithdrawal on his culpability for past acts and is without merit.
The judgment of the district court is AFFIRMED
. Entered for the Court
WADE BRORBY United States Circuit Judge