IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60132 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PERRY JACKSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:97-CV-29-S USDC No. 3:94-CR-8-4 --------------------

October 21, 1999

Before DAVIS, DUHE’, and DeMOSS, Circuit Judges.

PER CURIAM:*

Perry Jackson, federal prisoner # 10055-042, is appealing

the district court’s denial of his

motion in

which Jackson alleged that he was denied the effective assistance

of counsel at sentencing and on appeal. Jackson specifically

alleged that counsel should have challenged the Government’s

failure to prove that Jackson’s drug conspiracy offense involved

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-60132 -2-

d-methamphetamine as opposed to l-methamphetamine, which would

have resulted in his receiving a substantially lower guideline

sentencing range.

We have reviewed the record, and the briefs of the parties

and affirm the district court’s denial of Jackson’s § 2255

motion. Jackson’s argument that the case should be remanded to

allow him the opportunity to present evidence as to the type of

methamphetamine involved in the offense as was done in United

States v. Acklen,

(5th Cir. 1995) is misplaced. In

Acklen, the court determined that Acklen’s conclusional

allegations that the offense involved l-methamphetamine were

insufficient to show prejudice. However, in the particular

context of Acklen’s appeal, the court determined that an

affirmance would be improper because the district court in

addressing the § 2255 motion had proceeded on the baseless

assumption that l-methamphetamine had been involved in the

offense, there had been no clear challenge in the district court

to Acklen’s allegations, and Acklen had received no opportunity

to remedy the deficiencies in his allegations. Acklen,

. Jackson’s case is distinguishable from Acklen in that

the district court did not assume that the substance involved in

his offense was l-methamphetamine. Therefore, unlike Acklen,

Jackson had the opportunity in the district court to present

evidence to support his contention. No. 99-60132 -3-

Jackson has failed to tender “some specific verified basis

or evidence” that the drug involved in his offense was l-

methamphetamine. Acklen,

. Therefore, Jackson has

failed to show that he was prejudiced by counsel’s failure to

raise an objection at sentencing.

Because the denial of the § 2255 motion is affirmed based on

Jackson’s failure to make any showing that the offense involved

l-methamphetamine, it is not necessary to consider his argument

that the safety valve provision would be applicable if the case

is remanded for resentencing.

AFFIRMED.