* This order and judgment is not binding precedent, e xcept under the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

### JAN 29 1998 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. KEVIN L. JOHNSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. CHIQUITA VELETA OWENS,

Defendant-Appellant. No. 97-6111 (D.C. No. CIV-97-52-C) (W.D. Okla.)

No 97-6162 (D.C. No. 96-CV-2127) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.
Case No. 97-6111 Kevin Johnson was convicted of drug-related charges , and his conviction was affirmed by this court. See United States v. Owens , 70 F.3d 1118 (10th Cir. 1995). Johnson’s petition filed pursuant to 28 U.S .C. § 2255 was denied by the district court, and Johnson appeals. We affirm. On direct appeal, Johnson argued that (1) the prose cution failed to present sufficient evidence that he was a member of a consp iracy to distribute cocaine or cocaine base; (2) there was insufficient evidence t hat he conspired to distribute cocaine base as opposed to cocaine; (3) the attribu tion of 6.995 kilograms of cocaine base to him was erroneous; and (4) his sent ence should not have been enhanced for obstruction of justice.

As grounds for his § 2255 motion, Johnson argues th at he should have been granted an evidentiary hearing to demonst rate (1) there was no evidence that he possessed crack cocaine as opposedto cocaine powder; (2) there1 Further, by the time the opinion in Johnson’s direc t appeal was issued, the

Sentencing Guidelines had been amended to make it c lear that the term “cocaine base” means crack cocaine. See U.S. Sentencing Guidelines Manual Amendment 487 to § 2D1.1, effective November 1, 1993.

2 As a subset of this argument, Johnson argues that the court failed to apply Amendment 487 to § 2D1.1 of the Sentencing Guidelin es to his case. The court (continued...) -3- was insufficient evidence that he conspired to dist ribute cocaine powder and (3) he received ineffective assistance of counsel when counsel failed to press the distinction between crack cocaine and cocaine powde r at trial. He also contends that amendment 487 to USSG § 2D1.1 should have appl ied to his case and that the sentencing court did not make the required findings of foreseeability required under § 1B1.3. On direct appeal, this court held that “at least 1. 5 kilograms of cocaine base were attributable to [Johnson].” Id. at 1131. It is clear from reading that opinion that the court used the term “cocaine base” to mean crack cocaine because the panel carefully distinguished the amount of cocaine base possessed by Johnson from the amount of cocaine powder attributable to h im. See id. 1 This court stated “our review of the record shows there was ample evidence from which a reasonable jury could conclude the actions of Nick Owens, Kevin Johnson, and the other three coconspirators tried with them were all part of a single, unified conspiracy to distribute cocaine in the Musgrave Ad dition area of Oklahoma City.” Id. at 1126-27. 2 We will not revisit this conclusion. See United States v.2 (...continued)

clearly applied this amendment and correctly distin guished between cocaine base (“crack”) and other forms of cocaine. The fact that the court concluded that Johnson distributed cocaine base does not mean thatthe Amendment was not applied.

3 We will accord Johnson the benefit of the doubt andconclude that this issue was raised on direct appeal, however obliquel y. -4- Galloway , 56 F.3d 1239, 1243 (10th Cir. 1995) (observing th at reasons advanced on direct appeal in support of an ineffective assis tance of counsel claim cannot be reurged in a § 2255 motion because of the doctrine of issue preclusion). Johnson further argues that there was insufficient evidence to convict him of conspiracy to distribute cocaine powder. 3 Johnson, however, was convicted of one count of conspiracy to distribute cocaine powde r and/or cocaine base. Our review of the sentencing hearing makes it clear that Johnson was sentenced based on the amount of cocaine base attributable to him a nd not because of any evidence regarding his involvement with cocaine powder. See R. “Reporter’s Transcript of Proceedings, Tuesday, November 1, 1994" (Sentencing of Kevin Johnson) at 2, 5 (court ascribed 6.995 kilos to Johnson, and later s pecified that the cocaine was cocaine base). Johnson’s argument regarding eviden ce of his involvement with cocaine powder, therefore, is irrelevant. Johnson next contends that he received ineffective assistance of trial counsel because of counsel’s failure to press the d istinction between cocaine base and cocaine powder. Because this court has alreadyconcluded that the evidence-5-

supported Johnson’s conviction for conspiracy to di stribute cocaine base, it was not ineffective for counsel to fail to press this m eritless point. See United States v. Lopez , 100 F.3d 113, 119 (10th Cir. 1996). Finally, Johnson argues that the court failed to ap ply § 1B1.3 of the Sentencing Guidelines to his case. Because Johnsonfailed to raise this argument on direct appeal, and because he has not demonstrat ed cause for this default and prejudice from the error he asserts, we will not re view this claim in this § 2255 action. See United States v. Holland , 116 F.3d 1353, 1356 (10th Cir. 1997). Because the existing record clearly shows that John son is not entitled to relief, the district court did not abuse its discretion in deny ing him an evidentiary hearing.
See Lopez , 100 F.3d at 119. We grant Johnson’s motion for leave to proceed with out prepayment of costs or fees and dismiss the appeal for lack of a substantial showing of the denial of a constitutional right required by 28 U.S.C. § 2 253(c)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 19 96, Pub. L. No. 104-132, 110 Stat. 1217 (April 24, 1996).
Case No. 97-6162 The same jury that convicted Kevin Johnson of consp iracy to distribute cocaine powder and/or cocaine base also convicted C hiquita Owens of the same charge. This court affirmed Owens’ conviction in an unpublished opinion. See-6-

United States v. Gaines , Nos. 94-6408 & 94-6410, 1995 WL 678504 (10th Cir. Nov. 15, 1995). In her § 2255 petition, Owens argues that (1) her c ounsel was ineffective; (2) the district court erred in calculating the bas e offense level when it failed to consider whether the conversion of powder cocaine i nto crack was foreseeable by Owens (applying § 1B1.3 of the Sentencing Guideline s); and (3) “whether the district court had the authority to depart under th eir own discretion for the defendant because of mitigating circumstances,” Br. of petitioner at 17. The district court noted that Owens failed to raise the last two issues on direct appeal. In order to circumvent this problem , however, Owens argues that it was ineffective for her appellate counsel to omit t hese arguments on appeal. Because the district court found the last two argum ents to be without merit, it also found there was no ineffective assistance and denie d the petition. We affirm. As part of her ineffectiveness claim, Owens argues that she only agreed to transport powder cocaine and that both trial and ap pellate attorneys failed to press this distinction to the respective courts. Further , argues Owens, it was not foreseeable that the powder she transported would b e “rocked up” into crack. In the direct appeal of another of the coconspirato rs involved in this distribution scheme, this court, after reviewing th e entire record, stated that “Chiquita Owens occasionally distributed 2.5 kilogr am doses of crack cocaine,-7-

supplied by Timothy Johnson and helped Chris Scott reach Timothy Johnson to buy drugs when Timothy Johnson did not respond to h is pager.” United States v.
Owens , 70 F.3d 1118, 1123 (10th Cir. 1995). Similarly, in response to Owens’ § 2255 petition, the district court stated “[t]he e vidence was that the powder cocaine was actually cooked at this defendant’s res idence and she had knowledge of the conversion to crack cocaine and its subseque nt distribution.” United States
v. Owens , No. CIV-96-2127-C, Order at 2 (W.D. Okla, Apr. 29 , 1997). We have reviewed the transcript of the trial in thi s matter and find no merit to Owens’ contention that she was only involved with powder cocaine or that she could not have reasonably foreseen that the powder she transported would be converted into crack cocaine. The district court a lso correctly disposed of Owens’ claim for relief based on the failure to dep art downward from the sentencing guidelines. We therefore affirm the ord er of the district court for substantially the reasons stated therein. This appeal is dismissed for lack of a substantial showing of the denial of a constitutional right required by 28 U.S.C. § 2253(c )(2), as amended by the-8-

Antiterrorism and Effective Death Penalty Act of 19 96, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996). The mandates in both c ases shall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge