UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-51188 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOM WILKINSON EASTLAND, Defendant-Appellant. ___________________________________________________

Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CV-135; W-91-CR-43-1 ___________________________________________________ February 29, 2000 Before POLITZ, WIENER, and PARKER, Circuit Judges. PER CURIAM:*

Tom Eastland, federal prisoner # 56063-080, appeals the denial of his

motion. We granted Eastland a certificate of appealability on his claim that his attorney was ineffective for not investigating and calling witnesses to establish the type

of methamphetamine involved in Eastland’s criminal violation. On appeal, Eastland

contends that the methamphetamine with which he was involved had two separate

isomers (d and l), and that his attorney was not familiar with the two types of methamphetamine. He further maintains that his attorney did not research the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Sentencing Guidelines or the law, and that he would have received a lesser sentence had his attorney not been ineffective.

At the time of sentencing, there was no dispositive precedent directing how d,l-

methamphetamine, the substance involved in Eastland’s case, should impact the sentence. The failure of Eastland’s attorney to raise the then innovative d,l-

methamphetamine issue did not render his performance constitutionally deficient.2

Counsel objected to the recommendation in the presentence report that the substance

be considered pure or actual methamphetamine. Further, Eastland has not shown, and the record does not reflect, that had his attorney raised the d,l-methamphetamine issue, Eastland would have received a less severe sentence. The trial judge was aware of substantial additional methamphetamine involved in Eastland’s criminal conduct.

Our review of the voluminous record, briefs, and dispositive precedents persuades that Eastland has shown neither deficient performance by his counsel nor

prejudice based on any alleged deficient performance.3 The judgment appealed is AFFIRMED.

2 United States v. Seyfert,

(5th Cir. 1995). 3 See

; see also Strickland v. Washington,

(1984).

2