United States of America, Plaintiff-appellee, v. Mark Kelso, Defendant-appellant, 117 F.3d 1426 (9th Cir. 1997)

MEMORANDUM^* 

Federal prisoner Mark Wayne Kelso appeals pro se from the district court's denial of his 28 U.S.C. § 2255 motion challenging his conviction for conspiracy to possess methamphetamine with intent to distribute. We affirm.

Kelso contends that he was denied effective assistance of counsel because: (1) his attorney failed to request specific chemical tests to be performed to determine the type of methamphetamine that was seized at the time of Kelso's arrest; and (2) his attorney failed to object to his sentence on the grounds that the district court improperly calculated his sentence under the guidelines for D-methamphetamine without an offer of proof from the government that D-methamphetamine was involved in the transaction. Kelso's arguments are foreclosed by our decision in United States v. McMullen, 98 F.3d 1155, 1156 (9th Cir. 1996), cert. denied, 1997 WL 251244 (1997), where we held that an attorney's failure to object at the time of sentencing to the type of methamphetamine involved does not constitute ineffective assistance of counsel where no evidence exists to indicate Lmethamphetamine was involved. Nothing in Kelso's brief or the record indicates that this case is distinguishable from McMullen.

We reject Kelso's contention that the rule of lenity requires that his sentence be modified. See United States v. Basinger, 60 F.3d 1400, 1410 (9th Cir. 1995) (holding that the sentencing distinction between L- and Dmethamphetamine is unambiguous and not subject to the rule of lenity)

AFFIRMED.