Unpublished Disposition, 917 F.2d 567 (9th Cir. 1990)

MEMORANDUM^* 

In this consolidated appeal, defendant-appellants Stout, Cox, and Murray appeal their convictions on charges related to their involvement with a methamphetamine laboratory. The underlying facts in Stout's appeal, as well as in the two consolidated appeals (Nos. 89-10411 and 89-10413) are as follows: All three defendants were convicted of conspiracy to manufacture and distribute methamphetamine, manufacture of methamphetamine, and possession with intent to distribute methamphetamine. Stout was additionally convicted of establishment of manufacturing operations, based on the fact that she purchased the house which housed the methamphetamine laboratory. The three parties involved in this appeal pled not guilty and were convicted after a jury trial on all counts charged. This memorandum disposes of Stout's claims on appeal. The appeals of Cox and Murray are disposed of in separate memorandums.

Stout alleges that her attorney refused to allow her to testify on her own behalf, despite her repeated requests that she be permitted to do so. She also claims that her attorney failed to interview her alibi witness and failed to prepare to examine him at trial.

To succeed on an ineffective assistance of counsel claim, the defendant has the burden of proving that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to establish this claim, the defendant must "point to errors or omissions in the record." United States v. Johnson, 820 F.2d 1065, 1073 (9th Cir. 1987). Further, " [t]he customary procedure for claims of ineffective assistance of counsel in federal criminal trials is by collateral attack on the conviction under 28 U.S.C. § 2255 (1982)." Id. at 1074. This procedure permits the petitioner to present new facts in support of his claim. Id.

It is appropriate to require Stout to bring her claim in a collateral proceeding. Stout has provided no transcript of any portion of the trial, and thus provides no evidence of how her attorney's alleged inadequate preparation prejudiced her. Further, her specific claims about her attorney's trial preparation, such as her claim that he refused to let her testify, are impossible to verify without taking additional evidence. Therefore, this claim is dismissed without prejudice.

One of the policies of the Sentencing Guidelines enabling act is to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct...." 18 U.S.C. 3553(a) (6) (1988). Stout asserts that the Guidelines, as applied in her case, resulted in sentence disparities between defendants guilty of similar conduct. Therefore, she maintains that the guidelines as applied should be held to be invalid as inconsistent with their enabling act.

The grounds for her complaint are that two co-defendants, Pearson and Baughn (not parties to this appeal), charged in connection with the same drug manufacturing operation, received sentences that were much lower than Stout's sentence (nine months versus 97 months). Stout asserts that she and these co-defendants were all "guilty of similar conduct"; therefore, she argues, the differences in sentences show that the Guidelines as applied violated their enabling act.

This argument has no merit. The two co-defendants received nine-month sentences because they pled guilty to lesser offenses. The enabling act calls for avoiding sentencing disparities between defendants "found guilty of similar conduct." 18 U.S.C. 3553(a) (6) (1988) (emphasis added). There is no basis for asserting that defendants must receive similar sentences merely because they were involved in the same illegal transaction, where they were not found guilty of similar conduct. The Sentencing Guidelines do not remove the prosecutor's discretion concerning what charges to bring against various defendants involved in one illegal enterprise. See United States v. Foote, 898 F.2d 659, 666 (8th Cir.), cert. denied, 59 USLW 3246 (1990). The Sentencing Guidelines do not violate their enabling act simply because they continue to permit the prosecutor to have discretion in the matter of deciding what charges to file against which defendants.

Other issues were briefed and argued but did not present substantial legal questions.

AFFIRMED.