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Gary Fladten v. United States, 02-1230 (2002)

Court: Court of Appeals for the Eighth Circuit Number: 02-1230 Visitors: 35
Filed: Aug. 16, 2002
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 02-1230WM _ Gary O. Fladten, * * Appellant, * On Appeal from the United * States District Court v. * for the Western District * of Missouri. * United States of America, * [Not To Be Published] * Appellee. * _ Submitted: August 6, 2002 Filed: August 16, 2002 _ Before LOKEN, RICHARD S. ARNOLD, and RILEY, Circuit Judges. _ PER CURIAM. Gary Fladten pleaded guilty to one count of attempting to manufacture methamphetamine in violation of 21 U
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                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 02-1230WM
                                  _____________

Gary O. Fladten,                        *
                                        *
             Appellant,                 * On Appeal from the United
                                        * States District Court
      v.                                * for the Western District
                                        * of Missouri.
                                        *
United States of America,               * [Not To Be Published]
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: August 6, 2002
                                Filed: August 16, 2002
                                 ___________

Before LOKEN, RICHARD S. ARNOLD, and RILEY, Circuit Judges.
                           ___________

PER CURIAM.


       Gary Fladten pleaded guilty to one count of attempting to manufacture
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). He was
sentenced to 84 months of imprisonment. Mr. Fladten then filed a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The District Court1
denied this motion, but granted a certificate of appealability on Mr. Fladten’s claim

      1
       The Hon. Ortrie D. Smith, United States District Judge for the Western District
of Missouri.
that his attorney provided ineffective assistance in the handling of the two-point
sentencing enhancement that he received for possession of a firearm. After
examining the record, we hold that Mr. Fladten’s attorney was not constitutionally
deficient.

       We review the District Court’s conclusion that Mr. Fladten’s attorney was not
constitutionally ineffective de novo. In order to prevail on an ineffective-assistance-
of-counsel claim, Mr. Fladten must show that “trial counsel’s performance was so
deficient as to fall below an objective standard of reasonable competence, and that the
deficient performance prejudiced his defense.” Nave v. Delo, 
62 F.3d 1024
, 1035
(8th Cir. 1995), cert. denied, 
517 U.S. 1214
(1996) (quoting Lawrence v. Armontrout,
961 F.2d 113
, 115 (8th Cir. 1992). We do not believe the record supports such a
finding.

       In a previous opinion, we held that there was sufficient evidence in the record
to support the firearm enhancement that Mr. Fladten received. United States v.
Fladten, 
230 F.3d 1083
, 1086 (8th Cir. 2000) (per curiam). First, we noted that two
of Mr. Fladten’s co-defendants testified that Mr. Fladten was in possession of a
handgun sometime during the night that he was arrested. Additionally, a .22 caliber
weapon was found with other drug paraphernalia in the house where Mr. Fladten was
arrested.

       Mr. Fladten now contends that although his trial counsel objected to the two-
point sentencing enhancement, counsel was so unfamiliar with the police
investigation that he was unable to assert a meaningful challenge. Additionally, he
argues that his attorney failed to impeach properly the evidence of a government
informant who testified Mr. Fladten was in possession of a firearm on the night of
his arrest. Mr. Fladten argues that his attorney was not familiar with the correct
documents to impeach this testimony and then failed to pursue the matter thoroughly
on cross-examination. These arguments are without merit. Mr. Fladten’s trial

                                         -2-
counsel did object to the sentencing enhancement, and he also tried to impeach the
testimony of the government witnesses in several different ways. As petitioner points
out, there were arguments that his lawyer could have but did not make. We are not
persuaded, however, that these omissions were important enough to undermine one’s
confidence in the outcome of the sentencing hearing.

      Therefore, we affirm the decision of the District Court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -3-

Source:  CourtListener

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