United States v. Barker

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50250
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TOMMY WARD BARKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CV-137
USDC No. W-88-CR-130-17
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May 17, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Tommy Ward Barker appeals the district court’s denial of his
28 U.S.C. § 2255 motion alleging ineffective assistance of counsel
at sentencing for (1) failing to raise the “parolable” nature of
Barker’s offense, and (2) failing to request a decreased sentence
on the basis of the type of methamphetamine involved. The
Sentencing Guidelines abolished parole. See Golon-Peretz v. United
States, 498 U.S. 395, 399, 401 n.4, 410 (1991); Lightsey v.

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No. 98-50250
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Kastner, 846 F.2d 329, 331-32 (5th Cir. 1988)(the Sentencing Reform
Act abolishes parole); United States v. White, 869 F.2d 822, 826
(5th Cir. 1989)(sentencing guidelines apply to any offense committed
after October 31, 1987, including a conspiracy which began prior to
that date but continued after that date). This court determined on
direct appeal that the guidelines were applicable to this case.
See United States v. Devine, 934 F.2d 1325, 1332-35 (5th Cir. 1990).
This issue is therefore without merit.
Barker argues that because the methamphetamine at issue was
d,l-methamphetamine, and not “pure” d-methamphetamine, he should
not have been sentenced as if the entire amount were d-
methamphetamine, and counsel was ineffective for failing to raise
this issue at sentencing. There is no precedent in this circuit,
however, for using the l-methamphetamine calculation when d,l-
methamphetamine is the substance at issue. On the contrary, expert
testimony in other cases has resulted in scoring d,l-
methamphetamine as if it were a mixture of 50% d-methamphetamine
and 50% l-methamphetamine. See e.g., United States v. Allison, 63
F.3d 350, 353 (5th Cir. 1995); United States v. Acklen, 97 F.3d 750,
751 (5th Cir. 1996). Barker has not established that his sentence
would have been significantly less harsh if counsel had raised this
then-novel sentencing issue. See United States v. Seyfert, 67 F.3d
544, 548-49 (5th Cir. 1995). The district court did not err in
refusing to grant § 2255 relief on this claim.
AFFIRMED.

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