Case: 13-10839      Document: 00512828337         Page: 1    Date Filed: 11/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 13-10839
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        November 6, 2014
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

ANTHONY RODDEN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-325
                               USDC No. 4:11-CR-34


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Anthony Rodden, federal inmate # 42772-177, appeals the denial of his
28 U.S.C. § 2255 motion, arguing that he received ineffective assistance of
counsel at sentencing.         Rodden was sentenced to a 235-month term of
imprisonment and to a three-year period of supervised release. See United
States v. Rodden, 481 F. App’x 985, 985 (5th Cir. 2012). This court granted
Rodden a certificate of appealability (COA) to appeal the question whether “he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 13-10839

received ineffective assistance of counsel at sentencing when counsel failed to
object to the probation officer’s error in converting 30.9 grams of
methamphetamine to the marijuana equivalent of 618 kilograms.”
      On appeal, Rodden contends that the district court relied on materially
false and unreliable information in the Presentence Report (PSR) regarding
the amount of methamphetamine attributable to him and that counsel should
have objected to the district court’s reliance on this information. He also
argues that counsel should have objected to the probation officer’s erroneous
drug quantity conversion, which Rodden maintains should have been based on
28.7 grams of actual methamphetamine, rather than 30.9 grams representing
the weight of the total mixture.
      The Government now argues that it erroneously conceded in the district
court that the probation officer had erred in the drug quantity conversion.
Even if the Government had persisted in its concession of error, we would not
have been bound by it; we instead “give the issue independent review.” United
States v. Castaneda, 

, 171 (5th Cir. 2013); see also United States
v. Cavitt, 

, 435 (5th Cir. 2008). In reviewing the denial of a § 2255
motion, this court reviews the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. Cavitt, 

, 435
(5th Cir. 2008).
      Because Rodden possessed 30.9 net grams of a mixture that contained
ice (methamphetamine that was 93.1 percent pure) and the mixture containing
the ice weighed more than the 28.7 grams of the actual methamphetamine
Rodden possessed, the probation officer correctly converted 30.9 net grams of
methamphetamine to its marijuana equivalency. U.S.S.G. § 2D1.1(c), Notes to
Drug Quantity Table (B) and (C) (2009); see also United States v. Lee, 

, 1166 & n.7 (9th Cir. 2013). Given that the probation officer did not err



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                                  No. 13-10839

in his drug quantity conversion, Rodden fails to establish that counsel rendered
ineffective assistance. See Strickland v. Washington, 

, 687 (1987).
      Whether the district court relied on materially false information and
whether counsel rendered ineffective assistance when he failed to object to
district court’s reliance on the allegedly false information are outside the scope
of the issues for which a COA has been granted. Therefore, we do not consider
these issues. See 28 U.S.C. § 2253(c).
      The judgment is AFFIRMED.




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