* This order and judgment is not binding precedent, e xcept under the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

### 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 argumentwould 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 ora l argument. Defendant, a pro se federal prisoner, appeals the district court’s deni al of his 28 U.S.C. § 2255 petition. Defendant was convi cted on several counts of conspiracy to distribute, possession of, and distri bution of cocaine. After various-2-

appeals, the district court determined that Defenda nt should not have been sentenced as a career offender and resentenced him. At the resentencing, counsel for Defendant asserted that our remand mandate requ ired resentencing under the guidelines in effect at that time, and, therefore, that the sentencing court should apply Amendment 487. This amendment to the guideli nes addresses the definitions of cocaine base and crack cocaine. Def endant now alleges that counsel representing him at resentencing was ineffe ctive because he “fail[ed] to object to [the sentencing court’s] refusal to applythe guidelines in their entirety.” Appellant’s Br. at 1. Defendant moves for a certif icate of appealability and contends that his counsel’s alleged deficiency deni ed him effective assistance of counsel. We issue a certificate of appealability “only if th e applicant has made a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). We agree with the district court’s d etermination that Defendant “not only [has failed] to establish any deficient p erformance 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 fi led Dec. 23, 1997). Although Defendant’s counsel apparently didnot use the word “entirety,” he specifically requested that the sentencing courtapply the guidelines in effect at the time of resentencing, as required by Tenth Circuit law. See R., Doc. 169 at 1--3-

2; Doc. 200, Exh. A at 2. Counsel’s arguments to the sentencing court encompassed the spirit and principle of applying th e 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 resenten ce 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 coca ine 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 resente nced Defendant only on the career offender issue. See U NITED S TATES S ENTENCING G UIDELINES § 1B1.11(b)(2). Counsel’s failure to explicitly me ntion 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 su bstantially show the denial of a constitutional right; indeed, his claim is wholly w ithout merit. We therefore deny-4-

him a certificate of appealability and dismiss the appeal. DISMISSED. Entered for the Court
Monroe G. McKay Circuit Judge