Professional Documents
Culture Documents
United States v. Brazier, 10th Cir. (1998)
United States v. Brazier, 10th Cir. (1998)
TENTH CIRCUIT
JUN 9 1998
PATRICK FISHER
Clerk
No. 97-3390
(D.C. No. 97-3186-SAC)
(D. Kan.)
Defendant - Appellant.
After examining Appellants 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.
This order and judgment is not binding precedent, except under the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.
*
& 97-3186-SAC, 1998 WL 80367 (D. Kan. Jan. 5, 1998). Appellant asks this
court to grant him a certificate of appealability and to reverse the decision of the
district court dismissing his section 2255 motion.
To obtain a certificate of appealability, an appellant must make a
substantial showing of the denial of a constitutional right. 28 U.S.C.
2253(c)(2). Appellant argues that his Sixth Amendment right to effective
assistance of counsel was violated because his counsel failed to challenge the
sufficiency of the governments evidence that the cocaine involved in his crimes
was crack cocaine. He claims that this failure prejudiced him because the court
erroneously accepted the presentence reports finding that the drug involved was
crack cocaine and imposed on Appellant the requisite heightened sentence for
crack cocaine. Appellant asserts that the courts acceptance of the presentence
reports finding was erroneous because the government failed to bring forward
sufficient evidence to prove that the substance was in fact crack cocaine. To
establish a claim for ineffective assistance of counsel, one must make credible
allegations [that] his counsels performance was deficient and that the
[deficient] performance prejudiced [him]. Lasiter v. Thomas, 89 F.3d 699, 703
(10th Cir.), cert. denied,
ever produced to corroborate the allegation that his crime involved crack
cocaine. Appellants Br. at 10. It is not necessary for the government to produce
the drugs involved in the alleged crimes at trial or at sentencing in order to obtain
a conviction or enhance a sentence. See United States v. Cantley, 130 F.3d 1371,
1379 (10th Cir. 1997), cert. denied,
U.S.
States v. Silvers, 84 F.3d 1317, 1327 (10th Cir. 1996), cert. denied, __ U.S. __ ,
117 S. Ct. 742 (1997). Contrary to Appellants assertions, it is not necessary for a
chemist or scientist to testify at trial in order to establish the type of drug
involved. See United States v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th
Cir.) (affirming the principle that lay testimony and circumstantial evidence may
be sufficient for a jury to find that a substance was identified beyond a
reasonable doubt), cert. denied, 495 U.S. 939 (1990). Additionally, Appellant
offers no evidence to prove that the drug at issue was not crack cocaine but some
other form of cocaine. See Cantley, 130 F.3d at 1379 (Finally, though we
recognize the burden is on the government to prove the substances were crack
cocaine, [defendant] has presented no evidence whatsoever to show that the
substances were not crack cocaine.).
When determining a defendants sentence, the trial court may rely on any
testimony which has a sufficient indicia of reliability. United States v.
Beaulieu, 893 F.2d 1177, 1179-80 (10th Cir.), cert. denied, 497 U.S. 1038 (1990).
-4-
-5-
-6-