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United States Court of Appeals,
Fifth Circuit.
No. 94-10880.
UNITED STATES of America, Plaintiff-Appellee,
v.
William Henry WALKER, Jr., Defendant-Appellant.
Nov. 9, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
William Henry Walker filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. The district court
dismissed Walker's motion with prejudice. We affirm.
I. FACTS
The defendant, Walker, was charged, with two codefendants,
with possession of methamphetamine with intent to distribute,
possession of a precursor chemical, phenylacetone, with the intent
to manufacture a controlled substance, and conspiracy to commit
each of these offenses. Walker pled guilty to one count of
possession with intent to distribute. In the plea agreement, the
parties agreed that 14 years incarceration would be an appropriate
disposition of the case.
The presentence report (PSR) reveals that from the latter part
of 1988 through the early part of 1989, confidential informants
working with the Drug Enforcement Administration (DEA) made
purchases of methamphetamine from Walker and his codefendant
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Fernando Reyna on six separate occasions. The PSR also reveals
that Walker, Reyna, and Donald Ray Lampkin were observed unloading
trash from Walker's vehicle at a mini-storage complex where 11
gallons of phenylacetone were discovered in a storage unit rented
to Reyna.1 Although Walker objected to this finding prior to
sentencing, the probation officer's response indicates that a
witness had positively identified Walker as one of the individuals
with Reyna and that Walker was listed on the lease as one of the
persons having access to the storage unit rented by Reyna. The
record indicates that the necessary witness was prepared to testify
at sentencing.
Using the version of the sentencing guidelines in effect on
June 15, 1988, the probation officer converted the methamphetamine
and phenylacetone to equivalent amounts of cocaine to determine the
appropriate base offense level. The calculations produced a 442
gram weight equivalent for the methamphetamine and a 15,375 gram
weight equivalent for the phenylacetone. Based on these
quantities, a two-level increase for obstruction of justice, and
Walker's criminal history, the PSR proposed a guideline sentencing
range of 235 to 293 months. The maximum penalty allowed by the
relevant offense statute was 240 months. Walker filed numerous
objections to the PSR.
Prior to the sentencing hearing on May 24, 1991, the
government offered not to use the amounts of phenylacetone at
1According to the PSR, a chemist employed by the DEA
estimated that 11 gallons of phenylacetone would produce
approximately 37 kilograms of methamphetamine.
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sentencing if Walker agreed to stipulate to the amounts of
methamphetamine involved and drop his objections to the PSR.
Walker concedes on appeal that his attorney presented this offer to
him immediately before the sentencing hearing and that he agreed to
the proposal.
At the sentencing hearing, the parties stipulated that the
amount of methamphetamine to be considered in sentencing was
between 400 and 700 grams and that that amount resulted in a base
offense level of 28. The parties also stipulated that this change
resulted in a lower guidelines sentencing range of 121 to 151
months imprisonment. At the judge's questioning, Walker expressed
his agreement with the amount of drugs involved. The district
court sentenced Walker to 144 months imprisonment.
Subsequently, it was discovered that the 1990 edition of the
sentencing guidelines was used at sentencing. Walker filed an
unopposed motion to correct his sentence using the guidelines in
effect at the time of the offense, 1988. Because the 1988
guidelines resulted in a more favorable sentencing range of 97 to
121 months, the motion was granted and Walker was given a corrected
sentence of 121 months. Walker also filed a second motion to
correct sentence, apparently without stating a factual or legal
basis. This motion was denied, and the denial was upheld on
appeal.
On April 4, 1994, Walker filed the instant motion to vacate,
or correct his sentence under 28 U.S.C. § 2255. Walker contended
that the amount of methamphetamine used in sentencing was incorrect
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and was not supported by the lab reports.2 In addition, Walker
contended that his agreement with the incorrect amount was a result
of ineffective assistance of counsel. The magistrate judge
recommended that the motion be dismissed with prejudice and the
relief sought denied. The district judge adopted the magistrate's
findings and recommendations and dismissed Walker's motion with
prejudice without an evidentiary hearing. This appeal followed.
On appeal, Walker claims that his agreement with the stipulation at
sentencing and the alleged incorrect sentence are the result of
ineffective assistance of counsel.
II. DISCUSSION
This Court has noted repeatedly that "[r]elief under 28
U.S.C. § 2255 is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice." United States v. Acklen, 47 F.3d
739, 741 (5th Cir.1995). "Because a challenge under section 2255
"may not do service for an appeal,' a movant may not raise
constitutional or jurisdictional issues for the first time on
collateral review without establishing "both "cause" for his
procedural default and "actual prejudice" resulting from the
error.' " Id. at 741-42 (quoting United States v. Shaid, 937 F.2d
228, 231-32 (5th Cir.1991) (en banc), cert. denied, 502 U.S. 1076,
2Walker points out that the lab reports reflect a gross
weight of 454 grams methamphetamine which included the weight of
a plastic cup, plastic bags, and paper towels. The correct
amount of methamphetamine, Walker asserts, is the 221 gram net
weight reported in the PSR.
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112 S.Ct. 978, 117 L.Ed.2d 141 (1992)).
A district court's calculation under or application of the
sentencing guidelines standing alone is not the type of error
cognizable under section 2255. However, a defendant's claim of
ineffective assistance of counsel does give rise to a
constitutional issue. In addition, absent unusual circumstances,
ineffective assistance of counsel, if shown, is sufficient to
establish the cause and prejudice necessary to overcome a
procedural default. Acklen, 47 F.3d at 742.
To establish ineffective assistance of counsel, Walker must
allege and prove that counsel's performance was deficient and that
the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
"An attorney's performance, which enjoys a strong presumption of
adequacy, is deficient if it is objectively unreasonable." Acklen,
47 F.3d at 742. "With respect to prejudice in the context of
noncapital sentencing, the habeas court must determine whether
there is a probability that but for counsel's deficiency, the
defendant's sentence would have been significantly less harsh."
Id. Walker was not given an opportunity to establish his
ineffective assistance claim at an evidentiary hearing. However,
if on this record we can conclude as a matter of law that Walker
cannot establish one or both of the elements necessary to establish
his constitutional claim, then an evidentiary hearing is not
necessary and we may affirm. Acklen, 47 F.3d at 743-44.
The record indicates that defense counsel agreed to stipulate
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to the amount of methamphetamine proposed by the government because
possession of a large quantity of phenylacetone also could have
been considered in sentencing. Considering the sentencing range
proposed by the PSR, defense counsel's agreement to the stipulation
was objectively reasonable. In addition, the prejudice Walker
claims to have suffered rests solely on the calculation of his base
offense level as it relates to the alleged amount of
methamphetamine. Walker is unable to show that he suffered any
prejudice when we consider the relevant conduct eliminated by
stipulation. If the phenylacetone possessed by Walker and his
codefendants had been considered at sentencing, Walker's term of
imprisonment could have been double the term finally imposed.
Under the circumstances, we hold, as a matter of law, that Walker
could not establish ineffective assistance of counsel, and that,
therefore, an evidentiary hearing was not necessary.
III. CONCLUSION
For the reasons given above, the judgment of the district
court dismissing Walker's 2255 motion with prejudice is AFFIRMED.

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