United States of America v. Henry Jerome Hicks, Appellant, 38 F.3d 610 (D.C. Cir. 1994)

This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. The court has determined that the issues presented occasion no need for an opinion. See D.C. Cir. Rule 36(b). It is

ORDERED AND ADJUDGED that the district court's order filed May 27, 1993, denying appellant's section 2255 motion to vacate sentence and the order filed October 27, 1993, re-sentencing appellant, be affirmed. Even assuming defense counsel's representation was deficient, counsel's performance did not prejudice appellant. Strickland v. Washington, 466 U.S. 668, 694 (1984). The district court properly determined that there was not a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. In addition, the weight of the evidence supports the district court's finding that appellant falsely testified that he did not possess the medicine bottle containing the cocaine base. The district court, therefore, properly applied the Sentencing Guidelines in concluding that appellant's false testimony did not constitute a credible demonstration of contrition warranting a reduction in his offense level.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41.