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  • United States v. Brazier, 10th Cir. (1998)

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    The United States Court of Appeals for the Tenth Circuit denied Arturo Brazier's request for a certificate of appealability and affirmed the district court's dismissal of his motion to vacate his sentence. Brazier claimed he received ineffective assistance of counsel because his attorneys did not challenge the determination that his crimes involved crack cocaine, subjecting him to a harsher sentence. The appellate court found that Brazier did not prove his counsel's performance was deficient or prejudiced his case, as testimony and his own statements provided sufficient evidence that crack cocaine was involved. Therefore, Brazier did not establish an ineffective assistance of counsel claim and was not denied his constitutional right to counsel.

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    Filed: 1998-06-09 Precedential Status: Non-Precedential Docket: 97-3390

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    The United States Court of Appeals for the Tenth Circuit denied Arturo Brazier's request for a certificate of appealability and affirmed the district court's dismissal of his motion to vacate his sentence. Brazier claimed he received ineffective assistance of counsel because his attorneys did not challenge the determination that his crimes involved crack cocaine, subjecting him to a harsher sentence. The appellate court found that Brazier did not prove his counsel's performance was deficient or prejudiced his case, as testimony and his own statements provided sufficient evidence that crack cocaine was involved. Therefore, Brazier did not establish an ineffective assistance of counsel claim and was not denied his constitutional right to counsel.

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    30 views6 pages

    United States v. Brazier, 10th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit denied Arturo Brazier's request for a certificate of appealability and affirmed the district court's dismissal of his motion to vacate his sentence. Brazier claimed he received ineffective assistance of counsel because his attorneys did not challenge the determination that his crimes involved crack cocaine, subjecting him to a harsher sentence. The appellate court found that Brazier did not prove his counsel's performance was deficient or prejudiced his case, as testimony and his own statements provided sufficient evidence that crack cocaine was involved. Therefore, Brazier did not establish an ineffective assistance of counsel claim and was not denied his constitutional right to counsel.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    JUN 9 1998

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.

    No. 97-3390
    (D.C. No. 97-3186-SAC)

    ARTURO BRAZIER, a/k/a Arturo


    Gooding,

    (D. Kan.)

    Defendant - Appellant.

    ORDER AND JUDGMENT *

    Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

    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.
    *

    Appellant, Mr. Arturo Brazier, was convicted of conspiracy to possess with


    intent to distribute in excess of five kilograms of cocaine hydrochloride and/or in
    excess of fifty grams of cocaine base (crack cocaine), possession with the intent
    to distribute one kilogram of cocaine hydrochloride, and use of a communications
    facility to facilitate possession with intent to distribute cocaine. Appellant was
    sentenced to 188 months incarceration, and his conviction and sentence were
    affirmed on appeal. See United States v. Brazier, 85 F.3d 641 (Table), 1996 WL
    218605 (10th Cir. May 1, 1996).
    After his conviction was affirmed, Appellant filed a motion to vacate his
    sentence pursuant to 28 U.S.C. 2255, contending that he was denied the
    effective assistance of counsel guaranteed by the Sixth Amendment to the United
    States Constitution. Appellants petition alleges that both his trial counsel and
    appellate counsel were constitutionally ineffective because they did not raise the
    issue of whether the government proved that his crimes involved crack cocaine.
    Appellant contends that his counsels failure to raise this issue prejudiced him by
    subjecting him to the harsher sentence imposed upon those convicted of crimes
    involving crack cocaine. The district court denied the section 2255 motion. See
    United States v. Brazier, Nos. 93-40003-08-SAC & 97-3186-SAC, 1997 WL
    833293, at *7 (D. Kan. Dec. 11, 1997). The district court also denied Appellant a
    certificate of appealability. See United States v. Brazier, Nos. 93-40003-08-SAC
    -2-

    & 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,

    U.S. __ , 117 S. Ct. 493 (1996) (quoting Strickland v.

    Washington, 466 U.S. 668, 687 (1984)).


    Appellant attempts to prove his claims by stating that [n]o drugs [were]
    -3-

    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.

    , 118 S. Ct. 1098 (1998); United

    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-

    At the sentencing hearing, the government introduced a statement by Appellant


    that he provided 500 grams of crack cocaine to a co-conspirator. See Brazier,
    1996 WL 218605, at **5 & n.6. Although this statement was offered to impeach
    Appellants credibility, it was sufficient for the trial court to have properly found
    that the drugs involved were crack cocaine. The trial court also reasonably relied
    on trial testimony identifying the drug at issue as crack cocaine, testimony which
    this court discussed in its review of Appellants challenge, on direct criminal
    appeal, to the quantity of drugs at issue. See id. at *4; United States v. Hooks, 65
    F.3d 850, 854 (10th Cir. 1995) (In essence, Defendant requests we reverse the
    district court because [the witness] was not a believable witness. This we will not
    do.), cert. denied, 516 U.S. 1083 (1996).
    We conclude that Appellants allegations of ineffective assistance of
    counsel are insufficient to establish a claim under the standard established by
    Strickland. See Lasiter, 89 F.3d at 703-04. Appellant has not provided a legally
    meritorious argument that his counsels performance prejudiced him. Therefore,
    because Appellant has not made a substantial showing that he was denied his
    right to effective assistance of counsel, we DENY him a certificate of
    appealability. We AFFIRM the decision of the district court dismissing

    -5-

    Appellants petition pursuant to section 2255.


    AFFIRMED.
    Entered for the Court
    Monroe G. McKay
    Circuit Judge

    -6-

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