*This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 10 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, No. 98-6037

v. (No. CIV-97-290-C)

CHARLES MICHAEL KISSICK, (W.D. Okla.)

Defendant - Appellant.

 

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining Defendant-Appellant’s brief 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, a pro se federal prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2255 petition. Defendant was convicted on several counts of

conspiracy to distribute, possession of, and distribution of cocaine. After various
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appeals, the district court determined that Defendant should not have been

sentenced as a career offender and resentenced him. At the resentencing, counsel

for Defendant asserted that our remand mandate required resentencing under the

guidelines in effect at that time, and, therefore, that the sentencing court should

apply Amendment 487. This amendment to the guidelines addresses the

definitions of cocaine base and crack cocaine. Defendant now alleges that

counsel representing him at resentencing was ineffective because he “fail[ed] to

object to [the sentencing court’s] refusal to apply the guidelines in their entirety.”

Appellant’s Br. at 1. Defendant moves for a certificate of appealability and

contends that his counsel’s alleged deficiency denied him effective assistance of

counsel.

We issue a certificate of appealability “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). We agree with the district court’s determination that Defendant

“not only [has failed] to establish any deficient performance on the part of his

counsel, [but] he [also] has failed to show [the] prejudice” required by Strickland

v. Washington , 466 U.S. 668 (1984). R., Doc. 202 at 2 (Order filed Dec. 23,

1997). Although Defendant’s counsel apparently did not use the word “entirety,”

he specifically requested that the sentencing court apply the guidelines in effect at

the time of resentencing, as required by Tenth Circuit law. See R., Doc. 169 at 1-
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2; Doc. 200, Exh. A at 2. Counsel’s arguments to the sentencing court

encompassed the spirit and principle of applying the guidelines in their entirety. 

The court, however, determined that the mandate in United States v. Kissick , 69

F.3d 1048 (10th Cir. 1993), required it to resentence Defendant only on the career

offender issue. The court did not believe that it was proper to revisit any other

sentencing issues, including the definition of cocaine issue which underlies

Defendant’s ineffective assistance of counsel claim. This court upheld the district

court’s interpretation of the mandate in Kissick and its resentencing of Defendant

in accordance with that interpretation. See United States v. Kissick , 99 F.3d 1151

(Table), 1996 WL 603267, at *2-3 (10th Cir. Oct. 22, 1996), cert. denied , U.S.

 , 117 S. Ct. 1008 (1997). Contrary to Defendant’s assertion, the sentencing

court did not apply one guideline section from one edition and another guideline

section from a different edition because it resentenced Defendant only on the

career offender issue. See UNITED STATES SENTENCING GUIDELINES

§ 1B1.11(b)(2). Counsel’s failure to explicitly mention section 1B1.11(b)(2) of

the guidelines did not prejudice Defendant.

After thoroughly reviewing the record, we conclude that Defendant’s

ineffective assistance of counsel claim does not substantially show the denial of a

constitutional right; indeed, his claim is wholly without merit. We therefore deny 
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him a certificate of appealability and dismiss the appeal.

DISMISSED.

Entered for the Court

Monroe G. McKay

Circuit Judge