* This order and judgment is not binding precedent, e xcept under the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

### APR 22 2003 

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

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ERIK LAMONT BROWNE,

Defendant - Appellant. No. 02-6135 (D.C. No. CIV-01-606-A and CR-96-108-A) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Defendant Erik Lamont Browne timely appeals from anadverse district court order in this 28 U.S.C. § 2255 proceeding. See Fed. R. App. P. 4(a)(1(B). We affirm. Browne was convicted of conspiracy to distribute co caine base, 21 U.S.C. § 846, possession with intent to distribute cocaine base (and aiding and abetting), 21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2, and use of atelephone to facilitate the distribution of cocaine base, 21 U.S.C. § 843(b). He was sentenced to 324 months’ imprisonment with 5 years’ supervised relea se on each of the first two counts and 48 months’ imprisonment with 1 year’s supervised release on the third, all terms of imprisonment to run concurrently. On direct appeal, he argued that certain drug quantities relied on to support his se ntence had been calculated incorrectly. Specifically, he contended that (1) o ne kilogram of cocaine, seized in May 1995, lacked any nexus to him and should not have been counted; (2) the same kilogram should, in any event, have been treat ed as powder rather than crack cocaine; and (3) there were no findings to tie him to another half kilogram seized in June 1995. This court rejected the latter two c ontentions as waived in the district court, but remanded for additional finding s as to whether the kilogram seized in May 1995 was in fact within the scope of Browne’s conspiratorial agreement and foreseeable to him. United States v. Green , 175 F.3d 822, 836-38 (10th Cir. 1999).-3-

On remand, the district court made the necessary fi ndings and did not alter Browne’s sentences. On appeal, this court affirmed. United States v. Browne , No. 99-6277, 2000 WL 376626 (10 th Cir. April 13, 2000). Moreover, we specifically approved, as a proper application of t he mandate rule, the district court’s rejection of Mr. Browne’s attempt to revisi t the issues rejected on waiver grounds on his initial appeal. See id. at **2. Browne then filed this § 2255 proceeding, asserting that (1) his sentences were illegal under Apprendi v. New Jersey , 530 U.S. 466 (2000), and (2) his trial counsel had rendered ineffective assistance in waiv ing the drug quantity/quality issues noted above and in failing to challenge his sentences on the constitutional basis later recognized in Apprendi . The district court denied the ineffective assistance claims, but held that Apprendi applied retroactively to this collateral proceeding and required reduction of Browne’s 324-m onth sentences to the twenty-year statutory maximum applicable to offense s involving unspecified drug quantities. However, pursuant to the mandatory dir ective in U.S.S.G § 5G1.2(d), recognized by United States v. Price , 265 F.3d 1097, 1108-09 (10 th Cir. 2001), cert. denied , 122 S. Ct. 2299 (2002), the district court restru ctured the sentences to run consecutively in part and concurrently in pa rt, so that the total punishment remained the same. See also United States v. Lott , 310 F.3d 1231, 1242-43 (10 th-4-

Cir. 2002), petition for cert. filed (U.S. Feb. 3, 2003) (No. 02-8948). Upon the entry of judgment, Browne commenced this appeal. Browne’s contentions regarding ineffective assistan ce of trial counsel were properly rejected by the district court. He compla ined that counsel should have argued that the cocaine had not been shown to be cr ack, specifically because there was no evidence of any trace of sodium bicarbonate. The district court noted that the presence of sodium bicarbonate is not necessary, see United States v. Brooks , 161 F.3d 1240, 1248 (10 th Cir. 1998); accord United States v. Waters , 313 F.3d 151, 155 (3d Cir. 2002) (collecting cases), and the n went on to cite trial testimony sufficient to prove the substance was indeed crack. Dist. Ct. Order at 3. Browne’s complaint that counsel failed to challenge drug quantities attributed to him was rejected based on record evidence tying himto the drugs through his participation in the conspiracy. Id. at 4-6. Finally, the court held counsel was not ineffective for lacking the “clairvoyance” to predi ct the abrupt change in law effected by the Supreme Court’s decision in Apprendi

. Idat 9; see Valenzuela v. United States , 261 F.3d 694, 700 (7 th Cir. 2001) (holding that “an [ineffective assistance of counsel] argument premised on counsel ’s failure to anticipate Apprendi would be untenable”). Turning to the Apprendi claim itself, however, we note that, lacking the guidance subsequently provided by this court in United States v. Mora , 293 F.3d1 Because the windfall to Browne did not result in an illegal sentence, i.e., a

sentence that transgressed statutory limits, no suasponte plain-error correction is warranted here. See generally United States v. Brown , 316 F.3d 1151, 1159-60 & n.4 (10 th Cir. 2003) (distinguishing United States v. Moyer , 282 F.3d 1311, 1319 (10th Cir. 2002), which held that “imposition of an i llegal sentence constitutes plain error even if the sentence favors the defenda nt” and ordered correction of sentence even though only defendant had appealed). -5- 1213, 1219 (10 th Cir.), cert. denied , 123 S. Ct. 388 (2002), the district court incorrectly held Apprendi applied retroactively to this collateral proceedin g and required a mechanical reduction of Browne’s individ ual drug sentences to the lowest statutory maximum specified in 21 U.S.C. § 8 41(b)(1)(C)–though with the compensatory restructuring of the total punishment under U.S.S.G. § 5G1.2(d) explained above. The improper retroactive application of Apprendi , inuring to Browne’s benefit, was not appealed by the government. 1 Instead, the only matter before us is Browne’s objection that in relying on drug quantities never found by the jury to arrive at the “total punishment” benchm ark used in connection with § 5G1.2(d), the district court actually violated Apprendi in the course of applying it to reduce his sentence in the manner prescribed by Price and Lott . Even assuming we could consider such an argument–regardi ng the correct application of Apprendi in a collateral proceeding in which the defendant was not entitled to invoke Apprendi in the first place–this circuit’s prior decisions in Price and Lott , interpreting § 5G1.2(d) and explaining its implementation, are binding on this panel and foreclose Browne’s claim.-6-

The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge