Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-10921
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TOMMY HOWARD STRICKLIN,
Defendant - Appellant.
_________________________________________________________________
Appeals from the United States District Court for the
Northern District of Texas, Wichita Falls Division
_________________________________________________________________
May 1, 2002
Before JOLLY, JONES and BARKSDALE, Circuit Judges.
PER CURIAM:
This case presents a claim under 28 U.S.C. § 2255, brought by
Tommy
Howard
Stricklin.
He
alleges
that
he
received
constitutionally ineffective assistance of counsel because his
counsel failed to raise crucial objections during sentencing. We
agree and vacate his sentence.
In particular, we hold that the attorney's performance at
sentencing did not fall within the "wide range of reasonable
professional assistance." See Strickland v. Washington, 466 U.S.
1

668, 689 (1984). We further hold that this constitutionally
deficient performance resulted in prejudice. Accordingly, because
Stricklin was denied the constitutional right to effective
assistance of counsel, we vacate the judgment of the district court
dismissing Stricklin's § 2255 motion, vacate Stricklin's sentence,
and remand for resentencing not inconsistent with this opinion.
I
We briefly sketch out the background facts: In October 1993,
Stricklin agreed to set up a laboratory to manufacture
methamphetamine.1 Through a confidential informant, agents from
the DEA delivered Stricklin chemicals and glassware.2 The agents
then obtained a search warrant for Stricklin's residence.
Execution of the warrant revealed a methamphetamine laboratory in
Stricklin's shed. The laboratory was almost entirely composed of
the chemicals and glassware the agents had previously delivered to
Stricklin. In the lab, the agents found a triple-neck flask
containing a detectable amount of phenylacetone (P2P), which is an
1According to the Justice Department, methamphetamine ("meth")
"is a dangerous, sometimes lethal and unpredictable drug. Meth is
also known as speed, ice, and crystal. Like cocaine, meth is a
potent central nervous system stimulant. Meth represents the
fastest growing drug threat in America today." See United States
Justice Department, Drug Enforcement Division, Methamphetamine,
(visited March 24, 2002)<http://www.usdoj.gov/dea/concern/meth.htm>
(emphasis in original).
2Stricklin later testified that he intended to ruin the
chemicals to get the word out that he was incompetent at
manufacturing methamphetamine. According to Stricklin, by showing
a lack of skill, he could get the drug world to "leave him alone."
2

input in the production of methamphetamine. The agents also found
a container of phenylacetic acid (PA), which is an input in the
production of P2P.
A jury convicted Stricklin on two related counts: possession
with the intent to manufacture 2500 milliliters of P2P (Count I),
and second, possession of a listed chemical, PA, with intent to
manufacture methamphetamine (Count II). The district court
sentenced Stricklin to (1) a 188 month prison term under Count I;
(2) a 120 month prison term under Count II, which was to run
concurrent to his 188 month sentence; (3) a five year term of
supervised release; and (4) a $100 special assessment. On direct
appeal, we affirmed Stricklin's conviction and sentence. Although
Stricklin raised a claim of ineffective assistance of counsel, we
did not address this claim because of an inadequately developed
record. We dismissed this claim without prejudice.
Stricklin filed a petition for collateral relief under 28
U.S.C. § 2255. The district court denied the petition and
Stricklin's request for a COA. However, we granted Stricklin a COA
on two issues: (1) whether he was denied effective assistance of
counsel because his attorney failed to challenge the district
court's finding that he possessed 2,500 milliliters of P2P; and (2)
whether he was denied effective assistance of counsel because his
attorney failed to challenge the district court's finding that he
possessed at least two kilograms of PA.
3

We now turn to examine the two issues certified for appeal.
II
We review factual findings underlying the denial of a § 2255
motion for clear error and conclusions of law de novo. See United
States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994) (citations
omitted). To prevail on his ineffective assistance of counsel
claim, Stricklin must show that (1) his counsel's performance fell
below an "objective standard of reasonableness" and (2) he was
prejudiced by his counsel's deficient performance. Strickland, 466
U.S. at 687-88.
Stricklin argues that his counsel was ineffective because he
failed to object to the quantity of P2P that was used in the
computation of his sentence. Because of this failure to object, on
direct appeal we presumably3 reviewed his "quantity-based"
sentencing challenge under the plain error standard instead of the
more lenient clear error standard. See United States v. Humphrey,
7 F.3d 1186, 1189 (5th Cir. 1993). We must observe at the outset
that it is a cumbersome task to determine the proper sentence for
a conviction for the possession with intent to manufacture a
compound and mixture containing P2P. The sentencing court must
first deduct from the quantity of chemicals seized the materials
that "must be separated from the controlled substance before the
controlled substance can be used." Application Note 1, U.S.S.G. §
3The unpublished opinion does not reflect the standard of
review we applied on direct appeal.
4

2D1.1; see United States v. Levay, 76 F.3d 671, 673 (5th Cir. 1996)
("Under the amended guideline, only the actual weight of the
controlled substance is applied in calculating the base offense
level[.]"). The court then must convert the weight of the
remaining chemicals into an equivalent weight of marijuana using
the drug equivalence tables found in § 2D1.1 of the sentencing
guidelines. Finally, the court must apply the base offense level
for the equivalent weight of marijuana. See U.S.S.G. § 2D1.1(c).
Here, the court concluded that Stricklin's Count I offense
involved 2,500 milliliters of P2P and computed his sentence
accordingly. At trial, the evidence showed that the flask the DEA
agents seized from Stricklin's shed did not contain pure
phenylacetone. Instead, the flask contained a mixture of
substances. A chemist for the government testified that the
mixture contained 1.4 milligrams of P2P per milliliter of the
mixture. The district court did not -- as required by the
sentencing guidelines -- subtract from the P2P mixture the volume
of non-usable byproduct. See Application Note 1, U.S.S.G. § 2D1.1.
If the district court had done so, Stricklin argues that his
sentence would have been based on 3,500 milligrams of P2P rather
than 2,500 milliliters of P2P.4
The government argues that there is no evidence in the record
4This figure results from the following
14
. milligrams
2 500
,
mililiters x
= 3 500
,
milligrams
calculation:
milliliter
5

that supports a finding that the flask contained any waste product
whatsoever. We do not find this argument persuasive. Under the
guidelines, the weight of the mixture cannot include "materials
that must be separated from the controlled substance before the
controlled substance can be used." Id. The government's chemist
testified that the mixture was approximately 1/1000 part P2P -- the
needed input in the manufacture of methamphetamine. It follows
that the remainder of the mixture (999/1000 part) had to be
separated before Stricklin could use the mixture. See Levay, 76
F.3d at 673 ("The waste water referred to in the amendment
commentary is but one example of the type of disposable material
that may not be computed in the weight calculated [for the purpose
of sentencing]."). Accordingly, the sentencing court clearly erred
in concluding that Stricklin's offense involved 2500 milliliters of
P2P.5
Given this fact, there are three reasons why Stricklin's
sentencing counsel's performance did not meet the Strickland
objective reasonableness standard. First, the amendment to the
guidelines at issue (defining what materials the court should
exclude before weighing an illicit mixture) became effective about
5In the alternative, the government contends that the flask
actually contained 3500 milliliters of a mixture. Based on this
contention, the government argues that to comply with the
sentencing guidelines (i.e., to ensure that the weight of the
mixture did not include non-usable substances) it reduced the
volume of the mixture by 28 percent. The government concedes that
the record does not support this argument. Accordingly, we see no
need to consider the argument.
6

19 months before Stricklin's sentencing. See U.S.S.G. App. C,
Amdt. 484 (effective November 1, 1993). Second, by the time of the
sentencing, we had considered the amendment and held that waste and
other non-consumable substances should be excluded before the
remaining quantity of the controlled substance is used to calculate
a sentence. See United States v. Mimms, 43 F.3d 217, 220-21 (5th
Cir. 1995); United States v. Towe, 26 F.3d 614, 617 (5th Cir.
1994); Levay, 76 F.3d at 673. Third, the amount of P2P directly
determined Stricklin's sentence. Accordingly, reasonable counsel
would have brought the quantity-based argument to the attention of
the sentencing court. In short, this neglected argument was
obvious, solid, and based on directly controlling precedent. See
United States v. Williamson, 183 F.3d 458, 463 (5th Cir. 1999). We
therefore hold that the defendant has successfully established the
first prong of the Strickland test.
We now turn our attention to the prejudice component of the
Strickland test. It is clear that because Stricklin's counsel
failed to object to the quantity of P2P at sentencing, we applied
the stringent plain error standard of review on direct appeal. It
is also clear that -- in the light of the reasoning given above --
if Stricklin had lodged an objection at sentencing, on direct
appeal, we would have vacated his sentence based on both an
incorrect application of the sentencing guidelines and a clearly
erroneous finding of fact (i.e., the quantity of P2P). See United
7

States v. Alarcon, 261 F.3d 416, 423 (5th Cir. 2001) ("[W]e review
the trial court's application of the United States Sentencing
Guidelines de novo and its factual findings for clear error.")
(citation omitted), cert. denied, 122 S.Ct. 854 (2002).
To prove prejudice, however, Stricklin must show that but for
counsel's error, his sentence "would have been significantly less
harsh." United States v. Franks, 230 F.3d 811, 814-15 (5th Cir.
2000) (quoting Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.
1993)).
The government argues that Stricklin has not made this
necessary showing under Franks. Specifically, the government
contends that the district court could have based Stricklin's
sentence on the capacity of the lab, rather than the quantities of
chemicals in the lab. The government then asserts that a capacity-
based sentence would have been the same as the quantity-based
sentence actually imposed by the district court -- therefore,
Stricklin suffered no prejudice.
In the instant case, before the district court could use the
capacity of a lab for sentencing, it had to find that "the amount
[of controlled substances] seized [did] not reflect the scale of
the offense." Comment 12, § 2D1.1. The district court made no
such factual finding in this case. We decline to make such a
factual finding for the first time on appeal and leave this for the
consideration of the district court on remand. In any event,
8

however, in the absence of such a finding, this contention lends no
support for the sentence before us today.
Instead, on the record before us, if the district court had
computed the sentence correctly, the base offense level would have
been 24 instead of 32. For a base offense level of 32, the
guidelines mandate 151 to 188 months in prison for a person with
Stricklin's criminal background. In contrast, for a base level
offense of 24, the guidelines specify 63 to 78 months in prison.
This fact, when examined in conjunction with Stricklin's sentence
under Count II (a 120 month prison term), means that because of
counsel's error Stricklin received upwards of 60 additional months
in prison. This additional prison time constitutes prejudice. See
Glover v. United States, 531 U.S. 198, 203 (2001) ("Authority does
not suggest that a minimal amount of additional time in prison
cannot constitute prejudice. Quite to the contrary, our
jurisprudence suggests that any amount of actual jail time has
Sixth Amendment significance.")
As a consequence, we hold that Stricklin has satisfied the
prejudice prong of the ineffective assistance of counsel test.
IV
We have reviewed the record and find no merit in the other
issue certified for appeal. The district court did not "double
count" the PA used for the conviction under Count II when it
9

sentenced Stricklin.
For the foregoing reasons, we vacate the judgment of the
district court dismissing Stricklin's § 2255 motion. Furthermore,
we vacate Stricklin's sentence and remand for resentencing not
inconsistent with this opinion.
JUDGMENT VACATED;
SENTENCE VACATED;
REMANDED.
10