*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 5/2/96

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, No. 95-5179

v. (D.C. No. 94-C-1011-C)

MIKE YOUNGPETER, (N.D. Okla.)

Defendant - Appellant.

 

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.

After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially 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 argument.

Defendant Michael Youngpeter was convicted of conspiracy to manufacture,

possess, and sell methamphetamine. Pursuant to Sentencing Guideline § 1B1.3, the
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district court found Defendant responsible for 26.5 pounds of methamphetamine at

sentencing. The Defendant’s range of imprisonment under the Sentencing Guidelines

was determined to be 188 to 235 months, and the Defendant was sentenced to 188

months. We affirmed Defendant’s conviction and sentence. United States v. Youngpeter,

986 F.2d 349 (10th Cir. 1993). Defendant then filed a motion to vacate his conviction

pursuant to 28 U.S.C. § 2255, which the district court denied. We affirm.

Defendant raised ineffective assistance of counsel in his § 2255 motion. A district

court’s post-conviction factual findings that defendant’s counsel was effective are

reviewed under the clearly erroneous standard, but we review de novo whether counsel’s

performance was legally deficient and whether any deficiencies prejudiced the defendant. 

United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993). To establish ineffective

assistance of counsel, a defendant must show that his counsel’s performance fell below an

objective standard of reasonableness and that a reasonable probability exists that, but for

his counsel’s unprofessional errors, the results of the proceedings would have been

different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 

Defendant asserts his counsel was deficient in failing to order a chemical analysis

on the drugs involved in the conspiracy, but the district court correctly found that no

laboratory testings could be conducted because no methamphetamine was recovered and
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presented as evidence. Defendant next claims his counsel failed to object to the relevant

conduct determination and foreseeability finding at sentencing and on appeal. 

Defendant’s counsel, however, objected to both the relevant conduct determination and

the foreseeability finding at sentencing and on appeal, and his arguments were rejected. 

See Youngpeter, 986 F.2d at 354-55. 

Defendant next argues his counsel failed to object to the presentence report on the

grounds that it allegedly was prepared by a prejudicial and biased probation officer. He

also claims that the probation officer relied on inaccurate information and engaged in

“wild speculation” in formulating his conclusion regarding the quantity and quality of the

methamphetamine involved in the conspiracy. Defendant’s counsel challenged the

quality and quantity of drugs in the presentencing report, and he objected to the

sentencing court’s adoption of the presentencing report regarding the amount of drugs. 

Appellee’s Appendix, No. 5 (Defendant’s Objection Nos. 1-2); id., No. 2 (Sentencing

Transcript at 7). On direct appeal, we affirmed the sentencing court’s foreseeability

findings regarding the quality and amount of drugs. Youngpeter, 986 F.2d 353-54. 

Defendant is attempting to relitigate an issue which we decided on direct appeal, and we

will not revisit this settled issue. See United States v. Prichard, 875 F.2d 789, 791 (10th

Cir. 1989).
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Defendant also claims his counsel failed to make discovery motions and objections

concerning the charges brought against Defendant. The district court found that

Defendant’s counsel made several pretrial motions and that he appeared prepared and

knowledgeable concerning the facts and evidence at trial. Thus, this argument is

untenable.

Finally, Defendant contends that his counsel was ineffective for failing to require

the government at sentencing to determine if the methamphetamine was type-D or type-L. 

The district court did not specifically address this question. In United States v. Cook, 49

F.3d 663, 665 n.3 (10th Cir. 1995), we acknowledged that the guidelines’ treatment of

methamphetamine sentencing is “confusing and difficult to apply.” The sentencing

guidelines in effect at the time Defendant was sentenced treated type-L methamphetamine

significantly less harshly than type-D. U.S.S.G. § 2D1.1(c) n.* (Nov. 1991); see United

States v. Deninno, 29 F.3d 572, 579 (10th Cir. 1994) (“The sentencing difference

between D-methamphetamine and L-methamphetamine is significant.”), cert. denied, 115

S. Ct. 1117 (1995). 

Even if we were to assume that Mr. Youngpeter’s counsel was incompetent in

failing to perceive that the type of methamphetamine might have been relevant, Mr.

Youngpeter has failed to establish that he was prejudiced by this alleged incompetence. 
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Defendant has not alleged that the drug involved was type-L methamphetamine instead of

type-D. Also, there is no evidence in the record that the drug involved was type-L

methamphetamine or a D-L mixture. In fact, no laboratory tests could be performed on

the methamphetamine in this case because there was no methamphetamine recovered. 

The district court’s calculation of the methamphetamine was based on the testimony of

co-conspirators and the agent’s opinion, but there was no testimony as to whether the

methamphetamine was type-D or type-L. Under these circumstances, we conclude that

Mr. Youngpeter has failed to establish that absent the purported incompetence of his

counsel, the result of his sentencing proceeding would have been different.

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Monroe G. McKay

Circuit Judge