F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          SEP 2 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,
 v.                                                     No. 03-3189
 LESLEY LEE BECKER,                                      (D. Kansas)
                                                     (02-CV-3112-JAR)
                  Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and HENRY, Circuit Judges.


      Defendant-Appellant Lesley Lee Becker appeals from the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence.

The issue before us is whether Mr. Becker has presented a potentially meritorious

claim for ineffective assistance of counsel. Mr. Becker claims that his counsel

failed to present expert testimony at sentencing challenging the government’s

drug estimates. Because factual issues remain unclear, and under § 2255, the

district court must conduct an evidentiary hearing “[u]nless the motion and files


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and records of the case conclusively show that the prisoner is entitled to no

relief,” we remand for an evidentiary hearing on his ineffective assistance claim.



                                          I

      On March 31, 1997, police searched Mr. Becker’s residence pursuant to a

warrant. During the search, officers discovered acetone, ephedrine,

pseudoephedrine, and muriatic acid, all chemicals used in the production of

methamphetamine, as well as glassware, scales, and recipes for producing

methamphetamine. Officers detected methamphetamine residue in a bottle, a

zip-lock bag, a mixing bowl, and on the scales.

      A jury found Mr. Becker guilty on five counts: (1) attempting to

manufacture methamphetamine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2;

(2) maintaining a dwelling for the purpose of unlawfully manufacturing and

storing methamphetamine in violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2;

(3) possessing with intent to distribute marijuana in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2; (4) possessing acetone with the intent to

manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2; and (5) being a felon in possession of a firearm in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). We affirmed Mr. Becker’s conviction on

direct appeal. United States v. Becker, 

(10th Cir. 2000).


                                          2
      At issue is the district court’s calculation of how much methamphetamine

to attribute to Mr. Becker. The Sentencing Guidelines provide that “[w]here there

is no drug seizure or the amount seized does not reflect the scale of the offense,

the court shall approximate the quantity of the controlled substance. In making

this determination, the court may consider . . . the size or capability of any

laboratory involved.” USSG § 2D1.1 n.12. Because only methamphetamine

residue was discovered at Mr. Becker’s residence, the probation office utilized the

forensics report of the Kansas Bureau of Investigation (KBI). The government

offered this report to approximate the capability of the lab.

      The presentence report (PSR) noted that the KBI’s chemist

      provided a theoretical yield produced by the quantity of muriatic acid
      the defendant had at his property and determined the defendant could
      have produced at least 23 pounds of methamphetamine, by following
      the recipe the defendant had in his possession. The U.S. Probation
      Office has used the most conservative estimate of 6 pounds of actual
      methamphetamine, which the defendant could have produced, to
      calculate the guideline in this case.

Supl. Vol. I, at 9, ¶ 28 (PSR).

      Mr. Becker’s counsel objected to the estimation of drug quantity, arguing

that the offense level should reflect only the amount of actual drugs found at Mr.

Becker’s residence. However, Mr. Becker’s counsel did not object to the KBI’s

methodology of estimating the amount of methamphetamine from the quantity of

muriatic acid, and he presented no evidence of other methods or estimates.


                                           3
      The district court adopted the PSR, finding that

      the U.S. Probation Office has accurately calculated the guidelines in
      this case. By using the 160 ounces of muriatic acid to approximate the
      capability of the methamphetamine laboratory, the United States
      Probation Office took into account the amounts of the muriatic acid that
      the defendant likely used in a prior cook . . . .

      The U.S. Probation Office, with the assistance of the KBI Forensics
      Laboratory, approximated the capability of the methamphetamine
      laboratory in this case and provided for error on the defendant’s part,
      resulting in a reduced quantity. The Court is satisfied the U.S.
      Probation Office appropriately calculated the guidelines in this matter.

¶¶ 20-21. The PSR attributed six pounds, or 2,718 grams, of

methamphetamine to Mr. Becker. Mr. Becker’s adjusted offense level of 38 and

criminal history category of II resulted in a sentencing range of 262-327 months.

Relying on the PSR, the district court sentenced Mr. Becker to concurrent

sentences of 262 months’ imprisonment on count one, 240 months’ imprisonment

on counts two and four, and 120 months’ imprisonment on counts three and five.

      On direct appeal, Mr. Becker “challenge[d] the trial court’s determination

of the approximated capability of the methamphetamine lab and argue[d] the

resultant quantity calculation was not supported by the evidence.” 

. Noting that “[Mr.] Becker . . . failed to produce an expert of his

own to challenge the proffered figures,” we held that the drug estimate used to

sentence Mr. Becker was supported by the record and was not clearly erroneous.

                                          4
      Mr. Becker filed a § 2255 petition, arguing that he received ineffective

assistance of counsel at sentencing because his counsel failed to investigate the

government’s method of calculating drug quantities and failed to present expert

testimony to challenge the calculations relied upon by the district court. The

district court denied Mr. Becker’s § 2255 petition without holding an evidentiary

hearing. The district court found “that the method of drug calculation was

appropriate” and concluded that “we cannot say that [Mr. Becker] was prejudiced

by his counsel’s failure to put on an expert or further investigate the

government’s calculation method. It cannot be said that a reasonable probability

exists that if another expert had testified, the outcome would have been

different.” Rec. doc. 104, at 5-6 (Mem. and Order Denying Motion to Vacate

Sentence, filed May 8, 2003). This Court granted Mr. Becker’s request for a

certificate of appealability.



                                          II

      Mr. Becker reasserts his argument that he received ineffective assistance of

counsel because his counsel failed to present expert testimony at sentencing

challenging the government’s method of estimating drug quantity.

      As a preliminary matter, we reject the government’s contention that we

have already addressed Mr. Becker’s claim on direct appeal and that we should


                                          5
not reconsider it in a § 2255 motion. In bringing the present § 2255 action, Mr.

Becker took to heart our observation on direct appeal that “[Mr.] Becker . . .

failed to produce an expert of his own to challenge the [government’s] proffered

figures.” 

We agree with the district court that although our “direct

appeal analysis and decisions on the evidentiary issues have . . . bearing on [Mr.

Becker’s] § 2255 claims,” the claims are separate and distinct. Rec. doc. 104, at

3. Mr. Becker has properly raised his ineffective assistance claim in a § 2255

motion. United States v. Edgar, 

, 869 (10th Cir. 2003) (“With rare

exception, a defendant must raise ineffective assistance of counsel claims in a

collateral proceeding, not on direct appeal.”) (citing United States v. Galloway,

, 1240 (10th Cir. 1995) (en banc)); see also Massaro v. United

States, 

, 508 (2003) (“[F]ailure to raise an ineffective-assistance-

of-counsel claim on direct appeal does not bar the claim from being brought in a

later, appropriate proceeding under § 2255.”).

      We now turn to the merits of Mr. Becker’s claim that he deserved an

evidentiary hearing on his ineffective assistance claim. “Review in a section

2255 habeas action entails a two-step inquiry: [A] whether the defendant is

entitled to relief if his allegations are proved; and [B] whether the district court

abused its discretion by refusing to grant an evidentiary hearing.” United States

v. Whalen, 

, 1348 (10th Cir. 1992). We hold that Mr. Becker’s


                                           6
allegations can support a claim of ineffective assistance of counsel, and if they

are proved, he may be entitled to relief. Therefore, under the stricture of the

statute, we conclude that the district court abused its discretion, and we remand

for an evidentiary hearing on the issue of whether Mr. Becker received ineffective

assistance of counsel.

                                         A.

      “To prevail on a claim of ineffective assistance of counsel, a convicted

defendant ‘must show that [1] counsel’s representation fell below an objective

standard of reasonableness,’ and that [2] the deficient performance prejudiced the

defendant. To establish prejudice, the defendant ‘must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” United States v. Prows, 

, 691 (10th Cir. 1997) (quoting Strickland v. Washington, 

, 687-

88, 694 (1984)).

      1.     Deficient Performance

      Mr. Becker claims that his counsel was deficient for failing to challenge the

government’s drug estimates with evidence of other, more reliable methods of

estimation. The government based its estimate on the quantity of muriatic acid

seized from Mr. Becker’s house. Mr. Becker argues that expert testimony would

establish that muriatic acid is not a precursor chemical, but rather a reactive agent


                                          7
used sparingly in methamphetamine production, and that the drug estimates based

on the quantity of muriatic acid overstated the methamphetamine lab’s capability.

Mr. Becker offers the affidavit of one chemist and the testimony of another

chemist to support his argument that drug estimates based on muriatic acid are not

reliable and that estimates based on the precursor pseudoephedrine are reliable.

See Aplt’s Br., ex. B-C; 

¶ 9 (Report of Dr. John Vasiliades, Forensic

Toxicologist, dated Jan. 22, 2002) (“The use of hydrochloric acid (muriatic acid),

which is not a starting agent or precursor, and is of unknown concentration to

determine methamphetamine theoretical yield is both scientifically and

forensically unacceptable.”).

      Several acceptable methods can be used to estimate the capability of a drug

lab, and the district court may rely upon any estimate that has “some basis of

support in the facts of the particular case.” United States v. Richards, 

, 469 (10th Cir. 1994) (internal quotation marks omitted); see United States v.

Havens, 

, 705 (10th Cir. 1990) (“[T]he trial court, upon proper

testimony, may estimate the ultimate quantity of produceable drugs. This estimate

should be equal to the amount of drugs produceable if the precursor chemicals

possessed by the defendant were combined with proportionate amounts of the

missing ingredients including processing equipment.”); see also United States v.

Short, 

, 1457 (10th Cir. 1991) (estimating lab capacity based on the


                                          8
size of a glass flask); United States v. Chorin, 

, 280 (3d Cir. 2003)

(estimate based on amount of methylamine seized); United States v. Coleman, 

, 902 (8th Cir. 1998) (estimate based on quantity of iodine seized). In

estimating drug quantities, “a decision to rely on one precursor chemical rather

than another does not render a quantity determination clearly erroneous.” 

n.4. However, the “question is what each specific defendant

could have actually produced, not the theoretical maximum amount produceable

from the chemicals involved.” 

.

      “[W]hen choosing between a number of plausible estimates of drug

quantity, none of which is more likely than not the correct quantity, a court must

err on the side of caution.” 

(internal quotation marks

omitted) (emphasis added). However, in this case the sentencing court received

only one estimate of drug quantity from which to choose. Cf. 

(holding that where government presented two experts and defendant

presented one expert, “sufficient testimony was presented . . . to provide the

district court with a proper range of estimates.”) (emphasis added). Because Mr.

Becker’s counsel did not present expert testimony on this matter, the only drug

estimate available to the district court was the government’s estimate based on the

quantity of muriatic acid seized.

      Mr. Becker has sufficiently alleged, and the chemists’ report and testimony


                                          9
support his contention, that other, more reliable and conservative drug estimates

were available to his counsel, and that his counsel neither investigated them nor

presented them to the sentencing court. We conclude that counsel’s failure to

present this evidence may have constituted deficient performance. Because

“[t]his is primarily a factual matter proper for the district court’s determination,”

further proceedings in the district court are necessary. United States v. Harfst,

, 404 (10th Cir. 1999); see Arredondo v. United States, 

, 788 (6th Cir. 1999) (observing that “the district court should hold an

evidentiary hearing to determine whether a reasonable attorney . . . would have

attempted to convince the sentencing court that [the defendant] was responsible”

for a lesser quantity of drugs).

      2.     Prejudice

      Mr. Becker argues that counsel’s failure to present expert testimony about

methodologies of drug estimation prejudiced him because had the district court

considered such testimony, it would have chosen the more reliable and

conservative methodology, resulting in a shorter sentence for Mr. Becker. In

support of his arguments, Mr. Becker offers a chemist’s affidavit that states that

under a more reliable method of drug estimation, a maximum of 547 grams of

methamphetamine could have been produced by Mr. Becker’s lab. After

adjustments, this quantity of methamphetamine would establish a base offense


                                          10
level of 36, which, combined with Mr. Becker’s criminal history category of II,

results in a sentencing range of 210-262 months. This range is lower than the

262-327 month range under which Mr. Becker was sentenced. Although these

ranges overlap, and Mr. Becker was sentenced to 262 months, it is impossible

from this record to determine what sentence the district court would have given

Mr. Becker had it considered a different range. See Alaniz v. United States, 

, 368 (8th Cir. 2003) (holding that sentence falling within an area of

overlap between correct and incorrect Guidelines ranges is “unreviewable only if

the district court, at the time of sentencing, states unequivocally that it would

impose the same sentence with or without the challenged calculation”) (emphasis

added).

      Indeed, Mr. Becker could have been prejudiced by as much as 52 months.

“[A]ny amount of [additional] actual jail time has Sixth Amendment

significance.” Glover v. United States, 

, 203 (2001) (holding that

defendant sentenced to 84 months under the 78-97 month range received an

unlawful increase of between 6 and 21 months when, absent ineffective assistance

of counsel, he would have been sentenced in the 63-78 month range); 

(holding that defendant sentenced to 240 months under the 240-262

month range was prejudiced when, absent ineffective assistance of counsel, he

would have been sentenced in the 210-262 month range).


                                          11
      Mr. Becker has sufficiently alleged that but for his counsel’s failure to

present evidence of other drug estimations, a reasonable probability exists that his

sentencing would have been different. However, we cannot determine this as a

matter of law on this record. “Under the law of this circuit, the prejudice analysis

. . . focuses not solely on the failure to make an argument . . . but on the ultimate

success of the argument,” making further proceedings in the district court

necessary. 

(“[W]hether defendant was prejudiced by

counsel’s failure to request a [sentencing] adjustment depends on whether the

district court would have granted the request, a matter only the district court can

decide.”).

                                          B.

      Having decided that Mr. Becker’s allegations of ineffective assistance of

counsel, if proved, may entitle him to relief, we must consider whether the district

court abused its discretion in denying him an evidentiary hearing. Under § 2255,

the district court is required to conduct an evidentiary hearing “[u]nless the

motion and files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255. In his § 2255 motion before the district

court, Mr. Becker presented the chemists’ report and testimony regarding the

relative reliability of various methods of estimating drug quantity, and he showed

that his counsel did not present such evidence at sentencing. On this record, our


                                          12
case law requires the district court to grant an evidentiary hearing on Mr.

Becker’s ineffective assistance claim. See United States v. Cervini, No. 03-6144,

, at *5 (10th Cir. Aug. 11, 2004) (explaining that an evidentiary

hearing in a collateral attack is not required unless movant provides “a firm idea

of what the testimony will encompass and how it will support a movant's claim.”).



                                         III

      Accordingly, we REMAND for an evidentiary hearing.



                                               Entered for the Court,

                                               Robert H. Henry
                                               Circuit Judge




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