Submitted: June 14, 2016
from United States District Court for the Northern District
of Iowa-Sioux City
MURPHY and SHEPHERD, Circuit Judges, and PERRY,  District
MURPHY, Circuit Judge.
Herrera pled guilty to five counts of distributing pure
methamphetamine and one count of conspiring to distribute 50
grams or more of pure methamphetamine within 1000 feet of a
playground or school. See 21 U.S.C. §
841(b)(1)(A)(viii). The district court sentenced Herrera
to 120 months imprisonment, which he challenges in his 28
U.S.C. § 2255 petition. Herrera alleges that he is not
subject to the ten year mandatory minimum sentence under
§ 841(b)(1)(A)(viii) because his counsel failed to
challenge the quantity and purity of methamphetamine he sold.
The district court denied Herrera's petition, and we
convictions were based on five controlled buys of
methamphetamine. On July 29, 2010 Herrera sold approximately
8.5 grams of a mixture or substance containing about 7 grams
of pure methamphetamine. On August 17, 2010 he sold
approximately 6.5 grams of a mixture or substance containing
about 4.6 grams of pure methamphetamine. These two drug
transactions occurred within 1000 feet of The Boys and Girls
Home playground in Sioux City, Iowa, and three others
occurred within 1000 feet of St. Michael's School and
Leeds Playground in Sioux City. Herrera sold approximately
22.1 grams of a mixture or substance containing about 18.2
grams of pure methamphetamine on August 26, 2010,
approximately 16.1 grams of a mixture or substance containing
about 16 grams of pure methamphetamine on October 20, 2010,
and 48.3 grams of a mixture or substance containing about
41.7 grams of pure methamphetamine on February 15, 2011.
district court sentenced Herrera to 120 months imprisonment
because under 21 U.S.C. § 841(b)(1)(A)(viii) the
distribution of "50 grams or more of methamphetamine,
" or "500 grams or more of a mixture or substance
containing . . . methamphetamine, " is subject to a ten
year mandatory minimum sentence. The district court
calculated that Herrera had cumulatively distributed at least
50 grams of pure methamphetamine from April 2010 to February
2011, within 1000 feet of a playground or school.
filed a motion to vacate or correct his sentence under 28
U.S.C. § 2255, arguing ineffective assistance of counsel
because his attorney had not challenged the government's
calculation of the pure methamphetamine he had sold. The
district court denied Herrera's habeas petition but
granted a certificate of appealability. Herrera appeals,
claiming that his counsel failed to argue that he is not
subject to the ten year mandatory minimum because the 50 gram
provision in § 841(b)(1)(A)(viii) does not apply to
mixtures which contain a portion of pure methamphetamine.
review the district court's denial of a habeas petition
de novo for its legal conclusions and for clear error as to
its findings of fact. See White v. Dingle, 757 F.3d
750, 752 (8th Cir. 2014). To prevail on a claim of
ineffective assistance, Herrera must show that his
counsel's performance was deficient and that it
prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Every circuit to
consider the issue has concluded that the statutory language
"50 grams or more of methamphetamine" in §
841(b)(1)(A)(viii) applies when a defendant possesses a
mixture or mixtures which contain 50 grams of pure
methamphetamine. See United States v. Villegas, 554
F.3d 894, 900–01 (10th Cir. 2009) (collecting cases).
The sentencing guideline commentary further supports this
analysis. In U.S.S.G. § 2D1.1, pure or actual
methamphetamine is defined as "the weight of the
controlled substance, itself, contained in the mixture or
substance." See U.S.S.G. § 2D1.1, cmt. n.
(B) to Drug Quantity Table. Thus, "a mixture weighing 10
grams containing [methamphetamine] at 50% purity contains 5
grams of [pure methamphetamine]." See id.;
United States v. Mesner, 377 F.3d 849, 853, n.1 (8th
Herrera pled guilty to distributing mixtures which in total
contained 87.5 grams of pure methamphetamine. Herrera shows
no authority supporting his argument that the mandatory
minimum does not apply to him, or that his counsel was
deficient in failing to dispute the government's
calculation of pure methamphetamine he distributed.
these reasons we affirm the district court's judgment
denying Herrera's habeas petition.
The Honorable Catherine D. Perry,
United States District Judge for the Eastern District of
Missouri, sitting by designation.
The Honorable Donald E. O'Brien,
United States District Judge for the Northern District ...