* This order and judgment is not binding precedent, e xcept under the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

### DEC 22 1997 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MARI DEVON BEASLEY,

Defendant-Appellant. No. 97-7056 (D.C. No. CV-96-228-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , 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. Defendant appeals from a district court order denyi ng his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 22 55. The motion was filed after1 The parties ultimately stipulated to a quantity of 92.61 grams of cocaine

base. -2- the effective date of the Antiterrorism and Effecti ve Death Penalty Act of 1996, so the availability of review is conditioned on the issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Because defendant has not “made a substantial showing of the denial of a constitution al right,” § 2253(c)(2), we deny his application for the certificate and dismiss the appeal. Defendant pled guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a). At the plea heari ng, the district court evidently underestimated the quantity of cocaine base involve d and consequently misstated the mandatory statutory sentencing range as 5 to 40 years, see § 841(b)(1)(B)(iii) (five grams), instead of 10 years to life, 1 see§ 841(b)(1)(A)(iii) (fifty grams). However, before sentencing, the government offered to stipulate that defendant met the criteria in 18 U.S.C. § 3553(f) exempting h im from these statutory directives in any event, and the parties accordingl y agreed upon imposition of a sentence in the range specified by the sentencingguidelines applicable to the facts of the case, i.e., 87 to 108 months. The sentencing judge accepted the parties’ stipulat ions, indicated his intention to impose the minimum sentence in the gui deline range, and yet still2 Defendant has now added a new and distinct ineffect ive assistance claim,

for failure to take a requested appeal, which he argues is independent of his substantive objections and, therefore, does not stand or fall on their merits. This claim was not raised in the district court and, con sequently, is not properly before us. See United States v. Cook , 997 F.2d 1312, 1316 (10th Cir. 1993). -3- offered defendant the opportunity to withdraw his p lea in light of the prior misadvisement regarding the (now inapplicable) statutory sentencing directives. After conferring with counsel, defendant persisted in his guilty plea and received the preindicated 87-month sentence. He did not tak e an appeal. In his § 2255 motion, defendant raised several obje ctions to his conviction and sentence, only two of which he continues to arg ue on appeal. The principal thrust of his complaints is that, having been indic ted for and pled to a generalized cocaine offense, he could not be convicted and sent enced for trafficking in cocaine base . As a corollary to this substantive claim, and inexcuse for its belated assertion, defendant also contends that counsel was constitutionally ineffective for failing to prevent or subsequently challenge the alleged variance between his indictment/plea and conviction/sentence

. 2 One basic point undermines both claims. Section 84 1(a) indiscriminately prohibits “trafficking in cocaine, no matter what the form ,” United States v. Easter , 981 F.2d 1549, 1557 (10th Cir. 1992) (emphasis ad ded)--§ 841(b), with its type and quantity specifications, “is merely a pena lty provision and as such does not change the elements of cocaine trafficking offe nses,” id. Thus, “the identity3 In contrast, 21 U.S.C. § 844, which specifically pr ohibits possession of

cocaine base, includes the drug form as an element of the offense. See United States v. Hill , 60 F.3d 672, 676 (10th Cir. 1995). Indeed, for this reason, § 844 is not a lesser included offense of § 841(a). See United States v. Lucien , 61 F.3d 366, 373 (5th Cir. 1995). -4- of the involved controlled substance as being ‘coca ine base’ rather than simply ‘cocaine’ is not an element of any section 841(a)(1 ) offense. For [this] offense . . ., the indictment need only allege . . . cocaine, and whether or not it was the ‘cocaine base’ form . . . is purely a sente ncing factor.” 3 United States v. Deisch , 20 F.3d 139, 151 (5th Cir. 1994); see United States v. Lewis , 113 F.3d 487, 493 (3d Cir. 1997). Accordingly, it was entir ely proper for defendant to be sentenced for cocaine base--as he had been informedhe would--after pleading to a cocaine offense under § 841(a), and counsel can h ardly be characterized as ineffective for securing the lowest applicable guid eline sentence therefor (years less than the statutory minimum specified in § 841( b)(1)(A)(iii)). A certificate of appealability is DENIED and the ap peal is DISMISSED. Entered for the Court

John C. Porfilio Circuit Judge