* This order and judgment is not binding precedent, e xcept under the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 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-3390
v. (D.C. No. 97-3186-SAC) ARTURO BRAZIER, a/k/a Arturo Gooding, (D. Kan.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining Appellant’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-

Appellant, Mr. Arturo Brazier, was convicted of con spiracy to possess with intent to distribute in excess of five kilograms of cocaine hydrochloride and/or in excess of fifty grams of cocaine base (crack cocain e), possession with the intent to distribute one kilogram of cocaine hydrochloride , and use of a communications facility to facilitate possession with intent to di stribute cocaine. Appellant was sentenced to 188 months incarceration, and his conv iction and sentence were affirmed on appeal. See United States v. Brazier , 85 F.3d 641 (Table), 1996 WL 218605 (10th Cir. May 1, 1996). After his conviction was affirmed, Appellant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, contending that he was denied the effective assistance of counsel guaranteed by the S ixth Amendment to the United States Constitution. Appellant’s petition alleges that both his trial counsel and appellate counsel were constitutionally ineffective because they did not raise the issue of whether the government proved that his cri mes involved crack cocaine. Appellant contends that his counsels’ failure to ra ise this issue prejudiced him by subjecting him to the harsher sentence imposed uponthose convicted of crimes involving crack cocaine. The district court deniedthe section 2255 motion. See United States v. Brazier , Nos. 93-40003-08-SAC & 97-3186-SAC, 1997 WL 833293, at *7 (D. Kan. Dec. 11, 1997). The distric t court also denied Appellant a certificate of appealability. See United States v. Brazier , Nos. 93-40003-08-SAC-3-

& 97-3186-SAC, 1998 WL 80367 (D. Kan. Jan. 5, 1998) . Appellant asks this court to grant him a certificate of appealability and to reverse the decision of the district court dismissing his section 2255 motion. To obtain a certificate of appealability, an appell ant must make “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). Appellant argues that his Sixth Amendm ent right to effective assistance of counsel was violated because his coun sel failed to challenge the sufficiency of the government’s evidence that the c ocaine involved in his crimes was crack cocaine. He claims that this failure pre judiced him because the court erroneously accepted the presentence report’s findi ng that the drug involved was crack cocaine and imposed on Appellant the requisit e heightened sentence for crack cocaine. Appellant asserts that the court’s acceptance of the presentence report’s finding was erroneous because the governme nt failed to bring forward sufficient evidence to prove that the substance was in fact crack cocaine. To establish a claim for ineffective assistance of counsel, one must “make credible allegations [that] his ‘counsel’s performance was d eficient’ and ‘that the [deficient] performance prejudiced [him].’” Lasiterv. Thomas , 89 F.3d 699, 703 (10th Cir.), cert. denied , U.S. __ , 117 S. Ct. 493 (1996) (quoting Stricklan d v. Washington , 466 U.S. 668, 687 (1984)). Appellant attempts to prove his claims by stating that “[n]o drugs [were]-4-

ever produced to corroborate” the allegation that h is crime involved crack cocaine. Appellant’s Br. at 10. It is not necessary for the government to produce the drugs involved in the alleged crimes at trial o r at sentencing in order to obtain a conviction or enhance a sentence. See United States v. Cantley , 130 F.3d 1371, 1379 (10th Cir. 1997), cert. denied , U.S. , 118 S. Ct. 1098 (1998); United States v. Silvers , 84 F.3d 1317, 1327 (10th Cir. 1996), cert. denied , __ U.S. __ , 117 S. Ct. 742 (1997). Contrary to Appellant’s ass ertions, it is not necessary for a chemist or scientist to testify at trial in order t o establish the type of drug involved. See United States v. Sanchez DeFundora , 893 F.2d 1173, 1175 (10th Cir.) (affirming the principle that lay testimony and circumstantial evidence may be sufficient for a jury to find “that a substance was identified beyond a reasonable doubt”), cert. denied , 495 U.S. 939 (1990). Additionally, Appellant offers no evidence to prove that the drug at issue was not crack cocaine but some other form of cocaine. See Cantley , 130 F.3d at 1379 (“Finally, though we recognize the burden is on the government to prove the substances were crack cocaine, [defendant] has presented no evidence what soever to show that the substances were not crack cocaine.”). When determining a defendant’s sentence, the trial court may rely on any testimony which has a “sufficient indicia of reliab ility.” United States v. Beaulieu , 893 F.2d 1177, 1179-80 (10th Cir.), cert. denied , 497 U.S. 1038 (1990).-5-

At the sentencing hearing, the government introduce d a statement by Appellant that he provided 500 grams of crack cocaine to a co -conspirator. See Brazier , 1996 WL 218605, at **5 & n.6. Although this statem ent was offered to impeach Appellant’s credibility, it was sufficient for the trial court to have properly found that the drugs involved were crack cocaine. The tr ial court also reasonably relied on trial testimony identifying the drug at issue as crack cocaine, testimony which this court discussed in its review of Appellant’s c hallenge, on direct criminal appeal, to the quantity of drugs at issue. See id. at *4; United States v. Hooks , 65 F.3d 850, 854 (10th Cir. 1995) (“In essence, Defend ant requests we reverse the district court because [the witness] was not a beli evable witness. This we will not do.”), cert. denied , 516 U.S. 1083 (1996). We conclude that Appellant’s allegations of ineffec tive assistance of counsel are insufficient to establish a claim underthe standard established by Strickland . See Lasiter , 89 F.3d at 703-04. Appellant has not provided a legally meritorious argument that his counsels’ performance prejudiced him. Therefore, because Appellant has not made a “substantial” show ing that he was denied his right to effective assistance of counsel, we DENY h im a certificate of appealability. We AFFIRM the decision of the distr ict court dismissing-6-

Appellant’s petition pursuant to section 2255. AFFIRMED. Entered for the Court
Monroe G. McKay Circuit Judge