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United States v. Coyote, 10th Cir. (1997)
United States v. Coyote, 10th Cir. (1997)
MAR 11 1997
PATRICK FISHER
Clerk
No. 96-7090
(D.C. No. CIV-95-CV-169-S)
(E.D. Okla.)
States v. Riley, 554 F.2d 1282, 1283 (4th Cir. 1977); see Santana v. United States, 329
F.2d 854, 856 (1st Cir.), cert. denied 377 U.S. 990 (1964). Further, although petitioner
alleges her counsel should have objected to the district court sentencing her on the basis
of d-methamphetamine rather than l-methamphetamine, we agree with the government
that petitioner was not prejudiced by defense counsel's failure to do so. Petitioner was
found to be in possession of a package containing 439 grams of 49% pure
methamphetamine. Because this equaled approximately 215 grams of pure
methamphetamine, see United States v. Frazier, 28 F.3d 99, 101 (11th Cir. 1994),
petitioner was subject to a mandatory statutory minimum sentence of 120 months,
regardless of the type of methamphetamine involved. See 21 U.S.C. 841(b)(1)(A)(viii)
(providing minimum 10-year sentence where offense involves "100 grams or more of
methamphetamine"); United States v. Maza, 93 F.3d 1390, 1400 n.4 (8th Cir. 1996)
(noting 21 U.S.C. 841(b)(1)(A)(viii) does not differentiate between d-methamphetamine
and l-methamphetamine), cert. denied 1996 WL 769298 (1997).1
The certificate of appealability is DENIED and the appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
Petitioner argues that, at the time of her offense, 841(b)(1)(A)(viii) and
(b)(1)(B)(viii) prescribed conflicting statutory minimum punishments (i.e., 10 years to
life, and 5 to 40 years, respectively) for an offense involving 100 grams or more of a
mixture or substance containing methamphetamine. Although she is correct, see United
States v. Kinder, 946 F.2d 362, 367-68 (5th Cir. 1991), cert. denied 503 U.S. 987 (1992),
she fails to recognize she was in possession of 100 grams or more of pure
methamphetamine. Thus, notwithstanding the statutory conflict cited by petitioner, she
was clearly subject to a 10-year minimum sentence under the first clause of
841(b)(1)(A)(viii).
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