Appendix — Pickrel v. United States

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APPENDIX

[Filed Nov. 19, 1997]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 96-35538

D.C. Nos. CV-95-06181-REJ

CR-90-60026-01-REJ

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

JOSEPH Jay PICKREL,

Defendant-A ppellant.

No. 96-35738

D.C. Nos. CV-95-06182-REJ

CR-90-60026-2-REJ

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

JAMES PICKREL,

Defendant-A ppellant.

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MEMORANDUM *

Appeal from the United States District Court

for the District of Oregon

Robert C. Jones, District Judge, Presiding

Submitted November 17, 1997 **

Before: HUG, Chief Judge, PREGERSON and

BEEZER, Circuit Judges.

In this consolidated appeal, federal prisoners Joseph

Jay Pickrel and James Pickrel appeal the district court’s

denial of their 28 U.S.C. § 2255 motions to vacate sen-

tences imposed after pleading guilty to conspiracy to man-

ufacture and distribute methamphetamine in violation of

21 U.S.C. §§ 841(a)(1) and 846. The Pickrels contend

that their attorneys provided ineffective assistance during

their sentencing proceedings. We review this claim de

novo. See United States v. McMullen, 98 F.3d 1155,

1156-57 (9th Cir. 1996), cert. denied, 117 S. Ct. 2444

(1997). We have jurisdiction pursuant to 28 U.S.C.

§ 2255, and we affirm.

A successful ineffective assistance of counsel claim re-

quires a defendant to show deficient performance by his

attorney and prejudice from that deficiency. See Strick-

land v. Washington, 466 U.S. 668, 687 (1984). Strick-

land’s deficiency prong requires the defendant to demon-

strate that his counsel’s performance fell below “the wide

range of professionally competent assistance.” Id. at 690.

The prejudice prong requires the defendant to demonstrate

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by

9th Cir. R. 36-3.

** The panel unanimously finds this case suitable for decision

without oral argument. See Fed. R. App. P. 34(a) ; 9th Cir. R. 34-4.

Accordingly, Appellants’ request for oral argument is denied.

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“a reasonable probability that, but for counsel's unpro-

fessional errors, the result of the proceeding would have

been different.” Jd. at 694. An ineffective assistance claim

may be rejected solely on the basis that the defendant did

not demonstrate prejudice. See id. at 697.

The Pickrels contend that their attorneys were ineffec-

tive for failing to challenge the government's assumption

that the Pickerels’ offense involved d-methamphetamine

rather than the less severely punished ]-methamphetamine.

This contention lacks merit because nothing in the record

suggests that l-methamphetamine was actually involved

in the case. See McMullen, 98 F.3d at 1158 (holding

failure to raise Sentencing Guidelines distinction between

d-methamphetamine and |-methamphetamine not ineffec-

tive assistance where attorney did not have notice that

l-methamphetamine might be involved).

Next, the Pickrels argue that their attorneys were in-

effective for failing to challenge the qualifications of the

government's expert witness, a criminalist responsible for

sampling and testing the methamphetamine. This argu-

ment lacks merit because the Pickrels have not demon-

strated “a reasonable probability that,” had their attorneys

challenged the witness’s expert credentials, “the result of

the proceeding would have been different.” See Strickland,

466 USS. at 694.

The Pickrels contend their attorneys were ineffective for

failing to challenge the government’s method of calculat-

ing the weight of the methamphetamine involved in their

conspiracy. We disagree. The conspiracy was found to

involve 108 kilograms of methamphetamine. Under the

Sentencing Guidelines, the Pickrels’ base offense level

would have remained the same had their offense involved

as little as twenty-five kilograms of methamphetamine.

See U.S.S.G. § 2D1.1(a)(3) & comment. (n.10) (1987).

The Pickrels have not demonstrated a reasonable prob-

ability that, had their attorneys challenged the govern-

ment’s weight calculations in the manner they now sug-

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gest is proper, the amount of methamphetamine would

have been decreased from 108 to less than twenty-five

kilograms. See Strickland, 466 U.S. at 694.

Finally, the Pickrels’ contention that the cumulative

effect of their attorneys’ errors amounts to ineffective as-

sistance lacks merit because the Pickrels have failed to

demonstrate prejudice. See id.

AFFIRMED.

ee

Sa

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

No. CR 90-60026-1-JO

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

JOSEPH Jay PICKREL,

Defendant.

JONES, Judge:

Joseph J. Pickrel, a federal prisoner, moves under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence.

Pickrel asserts that: (1) the government failed to show

by a preponderance of the evidence that the methampeta-

mine seized from him was type “D” rather than type “L”,?

(2) the government miscalculated the weight of the

methamphetamine, and (3) promises regarding a plea

bargain were not met by the government. In addition,

Pickrel claims that each of these alleged errors was the

result of ineffective assistance by his counsel. He seeks a

reduction in his term of imprisonment After reviewing

the file and record in this case, I determine that the mo-

tion should be DENIED without further proceedings.

On October 29, 1990, Pickrel pled guilty to conspiracy

to manufacture and possess with intent to distribute

methamphetamine (21 U.S.C. § 841 (a)(1) and § 846). For

? While 21 U.S.C. § 841 is applicable to both Dextro (“D”) and

Levo (“L”’) methamphetamine, sentencing provisions for the former

are more severe.

* Pickrel asks that his offense level be reduced from 38 to 34,

which would reduce his current 240 month sentence to a term of

imprisonment ranging between 151 and 188 months.

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these crimes, I sentenced him, on February 12, 1991, to

240 months imprisonment. Pickrel was represented by

counsel, and he was given an opportunity to object to the

presentence report before his sentencing.

STANDARDS

28 U.S.C. § 2255 provides that the court shall grant

the petitioner a hearing “unless the motion and the files

and the records of the case conclusively show that the

prisoner is entitled to no relief.” The court may deny a

hearing if the petitioner’s allegations, viewed against the

record, fail to state a claim for relief. United States v.

Popoola, 881 F.2d 811, 812 (9th Cir. 1989). Thus, to

earn the right to a hearing the petitioner must allege

specific facts which, if true, would entitle him to relief.

See Popoola, 881 F.2d at 812.

Even where the government has the burden of proof,

“the burden of alleging factual inaccuracies of the pre-

sentence report is on the defendant.” United States v.

Deninno, 29 F.3d 572, 580 (10th Cir. 1994). “Failure

to object to a fact in a presentence report . . . acts as an

admission of fact.” Jd. This bar applies equally to col-

lateral attacks concerning the type of methamphetamine,

United States v. Ward, 55 F.3d 412 (8th Cir. 1995), and

the quantity of methamphetamine, United States v.

Seyfert, 67 F.3d 544, 546 (Sth Cir. 1995). Pickrel

attempts to circumvent the procedural bar by asserting

that he received ineffective assistance of counsel.

To succeed on a § 2255 motion based on allegations

of ineffectiveness of counsel, a petitioner must show both

deficient performance and prejudice. Strickland v. Wash-

ington, 466 U.S. 668, 689 (1984). To show deficient

performance, Pickrel must identify specific errors and

omissions that fall outside “the wide range of reasonable

professional assistance.” Id. Moreover, prejudice requires

more than a showing that the outcome would have been

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different but for his counsel’s error. Pickrel must also

show that his counsel’s performance rendered the result

of the trial “unreliable” or the proceeding “fundamentally

unfair.” United States v. Garcia, 997 F.2d 1273, 1283

(9th Cir. 1993); Lockard v. Fretwell, 113 S.Ct. 838, 839

(1993).

DISCUSSION

Pickrel’s first claim is that his counsel was ineffective

because he failed to object to the government’s character-

ization of the methamphetamine as type “D”. In support

of this claim, he relies on United States v. Dudden, 65

F.3d 1461, 1471 (9th Cir. 1995),° and United States v.

Patrick, 983 F.2d 206 (11th Cir. 1993), which held that

the government must show by a preponderance of evi-

dence that the methamphetamine is type “D”. Neither

Dudden nor Patrick involved a § 2255 motion, and in

both cases the defendant preserved the issue for appeal.

Because Pickrel did not preserve this issue for appeal,

the success of his motion rests on his ability to show his

counsel acted ineffectively.

The first prerequisite to a claim of ineffective counsel

is deficient performance. Strickland v. Washington, supra,

466 U.S. at 689. The first reported case requiring the

government to prove that methamphetamine was “D” as

opposed to “L” was United States v. Patrick, supra, 983

3 In Dudden, a government informant was convicted of conspiracy

to distribute methamphetamine. No methamphetamine or lab equip-

ment was recovered, but the district court relied upon two affidavits,

prepared for sentencing in a different case, which stated that

methamphetamine labs usually produce type “D” rather than type

“L” methamphetamine. Defense counsel preserved the issue for

appeal by objecting. On appeal, the Ninth Circuit held that the

government had the burden of proving that the methamphetamine

was type “D” by a preponderance of the evidence, and that presenta-

tior of general affidavits was insufficient to meet this burden. Dud-

der 45 F.3d at 1471.

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F.2d at 206, decided well after Pickrel’s conviction.*

Dudden, supra, which Pickrel suggests should be the

standard for his counsel’s performance, was not decided

until September 13, 1995. In effect, Pickrel is asking that

the new standard for methamphetamine cases announced

in Patrick and Dudden be retroactively applied years later

to evaluate his counsel’s effectiveness.© I decline to do

this. The conduct of Pickrel’s counsel was well within

“the wide range of reasonable professional assistance.”

Pickrel has also failed to satisfy his burden of showing

of prejudice, the second prerequisite to a claim of ineffec-

tive counsel. Pickrel contends that his counsel’s failure

to challenge the government’s classification of the metham-

phetamine as type “D” unfairly prejudiced him. How-

ever, expert testimony by the government at Pickrel’s

sentencing established that the primary type of metham-

phetamine produced by the “ephedrine/red phosphorous”

method of manufacturing employed at his drug lab is

type “D—D. ”

Pickrel also has offered no evidence to indicate that his

lab probably did or even could have produced type “L”

methamphetamine. This alone defeats his argument be-

cause he cannot meet the essential burden of demonstrat-

ing that the trial results were “unreliable” or “funda-

mentally unfair.” United States v. Garcia, 997 F.2d at

* Before United States v. Patrick was decided, the standard was

substantially different. In United States v. Koonce, 884 F.2d 349,

353 (8th Cir. 1988), the court found that “the government ade-

quately carried its burden of proof” without testing to determine

the type of the methamphetamine.

5 Even if Dudden were applied retroactively, it would not help

Pickrel’s position. In Dudden no methamphetamine was recovered,

while in this case both chemicals and manufacturing equipment

were recovered. The chemicals recovered and the manufacturing

process discovered are only used to create type “D” methampheta-

mine. Pickrel has the indepen’ »nt burden of proving prejudice, see

Garcia, supra, which he has failed to do. See discussion, infra.

9a

1283. The mere supposition by Pickrel that methamphet-

amine could have been type “L” does not establish preju-

dice. Absent evidence to back up his claim, he has failed

to show prejudice and is not entitled to relief.®

Pickrel’s second claim is that his counsel was ineffective

because he did not adequately challenge the government’s

methodology in calculating the quantity of methamphet-

amine seized from him. At the time of his conviction,

the entire weight of a methamphetamine mixture was rele-

vant for sentencing.’ Whether the mixture was completely

homogenous or pure is not relevant for purposes of evalu-

ating the performance of Pickrel’s counsel.? There also

is no evidence of prejudice to Pickrel, because there is

no indication from the record that additional questions

regarding the calculation of the quantity of methamphet-

amine would have made a material difference in his

sentence.

Finally, Pickrel claims that his counsel was ineffective

because he did not object to the government’s alleged

failure meet the terms of his plea bargain agreement.

® Even if this court were to ignore the evidence that the metham-

phetamine was type “D” and assume it was type “L”, Pickrel would

still have to establish a reasonable probability that had he known

he would be sentenced for type “D” methamphetamine, he would

have gone to trial rather than plead guilty.

7U.S.S.G. § 2D1.1 states: “Unless otherwise specified, the weight

of a controlled substance set forth in the table [i.e. the table of

Controlled Substances and Quantity] refers to the entire weight

of any mixture or substance containing a detectable amount of con-

trolled substance.”

8 Note: Amendment 484 changed this rule in 1993 as follows:

“except as otherwise provided, a mixture or substance does not

include materials: that must be separated from the controlled sub-

stance before the controlled substance can be used.” See U.S.S.G.

App. C. p.482. Pickrel cannot use subsequent changes in the law

in an attempt to prove that his counsel was ineffective at the time

of sentencing.

10a

There simply is no evidence to support this claim. Pickrel

did have his sentenced capped at twenty years, and he

was given credit for acceptance of responsibility. There

is no evidence that the government made any misleading

statements. The government stated that it would recom-

mend a sentence that would be “at the low end of the

sentence range,” and it did. The fact that the court, in

its discretion, imposed a greater sentence, does not con-

stitute deception. Moreover, Pickrel makes no showing

that he was prejudiced. He received the recommendation

he bargained for.

CONCLUSION

Pickrel has failed to demonstrate any specific errors or

omissions that both fall outside professional competence

and which prejudiced him by rendering the result of the

trial unreliable or fundamentally unfair. For the reasons

stated in this order, petitioner’s § 2255 motion ( #272-1)

is DENIED. Any other pending motions are denied as

moot, and this action is dismissed.

DATED this 17th day of April, 1996.

/s/ Robert E. Jones

ROBERT E. JONES

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

No. CR 90-60026-2-JO

UNITED STATES OF AMERICA,

Plaintiff,

v.

JAMES ROBERT PICKREL,

Defendant.

ORDER

JONES, Judge:

James Robert Pickrel, a federal prisoner, moves under

28 U.S.C. § 2255 to vacate, set aside, or correct his sen-

tence. He asserts that: (1) the government failed to show

by a preponderance of the evidence that the methampheta-

mine seized from him was type “D” rather than type “L”,

(2) the government miscalculated the weight of the

methamphetamine, and (3) promises regarding a plea

bargain were not met by the government. In addition, he

claims that each of these alleged errors was the result of

ineffective assistance by his counsel. He seeks a reduction

in his term of imprisonment. After reviewing the file and

record in this case, I determine that the motion should be

DENIED without further proceedings.

SUMMARY OF FACTS

On April 5, 1990, a grand jury returned an indictment

charging James Robert Pickrel, his brother, Joseph Jay

Pickrel, and others with violations of federal narcotics

1 While 21 U.S.C. § 841 is applicable to both Dextro (“D”) and

Levo (“L”) methamphetamine, sentencing provisions for the former

are more severe.

12a

laws. On October 29, 1990, following extensive negotia-

tions, James Robert Pickrel pled guilty in conspiracy to

manufacture and possess with intent to distribute meth-

amphetamine (21 U.S.C. § 841(a)(1) and § 846). He

was represented by counsel and given an opportunity to

object to the presentence report. For these crimes, I sen-

tenced him, on February 12, 1991, to 160 months im-

prisonment.

DISCUSSION

James Robert Pickrel’s arguments for relief under 28

U.S.C. § 2255 are identical to those of his brother, Joseph

Jay Pickrel. For the same reasons discussed in U.S. v.

Joseph Jay Pickrel, No. CR 90-60026-1-JO (Order,

April 17, 1996), his motion is DENIED without further

proceedings.

DATED this 28th day of May, 1996.

/s/ Robert E. Jones

ROBERT E. JONES

United States District Judge

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Excerpts

United States Sentencing Guidelines

2D1.1. Unlawful Manufacturing, Importing, Exporting,

or Trafficking (Including Possession with Intent

to Commit These Offenses)

(a) Base Offense Level:

(1) 43, for an offense that results in death

or serious bodily injury with a prior

conviction for a similar drug offense; or

(2) 38, for an offense that results in death

or serious bodily injury and involved

controlled substances (except Schedule

Ill, IV, and V controlled substances

and less than: (A) fifty kilograms of

marihuana, (B) ten kilograms of hash-

ish, and (C) one kilogram of hashish

oil); or

(3) For any other offense, the base offense

level is the level specified in the Drug

Quantity Table below.

* * * *

DRUG QUANTITY TABLE

Base

Offense

Controlled Substances and Quantity* Level

10 KG Heroin or equivalent Schedule I or II_ Level 36

Opiates, 50 KG Cocaine or equivalent Schedule

I or II Stimulants, 500 G Cocaine Base, 10 KG

PCP or 1 KG Pure PCP, 100 G LSD or equiv-

alent Schedule I or II Hallucinogens, 4 KG

Fentanyl or 1 KG Fentanyl Analogue, 10,000

KG Marihuana, 100,000 Marihuana Plants,

2000 KG Hashish, 200 KG Hashish Oil (or

more of any of the above)

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Controlled Substances and Quantity*

Base

Offense

Level

3-9.9 KG Heroin or equivalent Schedule I or Level 34

II Opiates, 15-49.9 KG Cocaine or equivalent

Schedule I or II Stimulants, 150-499 G Co-

caine Base, 3-9.9 KG PCP or 300-999 G Pure

PCP, 30-99 G LSD or equivalent Schedule I or

II Hallucinogens, 1.2-3.9 KG Fentanyl or 300-

999 G Fentanyl Analogue, 3000-9999 KG

Marihuana, 30,000-99,999 Marihuana Plants,

600-1999 KG Hashish, 60-199 KG Hashish Oil

ok * K *K

DRUG EQUIVALENCY TABLES

Cocaine and Other Schedule I and II Stimulants

* * * *

1 gm of Methamphetamine —

2.0 gm of cocaine/0.4 gm of heroin

1 gm of L-Methamphetamine/Levo-methamphetamine/

L-Desoxyephedri=

0.2 gm of cocaine/0.04 gm of heroin

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Excerpts from

District Court Hearing Transcripts

The prosecutor called them “horrific.” Transcript of

Hearing, October 25, 1990, p. 3 (Appendix, No. 3). The

Court indicated the severity of these sentences at various

times during the sentencing hearing, stating at one point:

“I just snatched away the flower of your life, 20 years.”

Transcript of Hearing, February 12, 1991, at p. 175

(Appendix, No. 6). The Court correctly summarized the

tragic proportions of the sentences involved by saying the

following:

It’s a fairly—you know, it’s a very difficult thing for

the Court to impose this amount of time on anybody.

The fact of the matter is, you'll be doing more time

than the average person who commits murder in this

state, which is incredible.

Transcript of Hearing, February 12, 1991, at p. 173

(Appendix, No. 6).