for possession of cocaine did not meet the definition of a qualifying felony under r. Horey’s ineffective assistance of counsel claim. The government conceded in the district court that Mr. Horey’s prior conviction did not trigger the career offender enhancement imposed at sentencing and that he was sentenced under an inappropriate guideline range. The government argued, however, that counsel’s error was not prejudicial because Mr. Horey was sentenced within the guideline range that would have applied without the career offender enhancement. The government emphasized that the sentencing court had expressed neither dissatisfaction with the guideline range being harsh nor an inclination toward a lesser sentence. Applying United States v. Kissick, 69 F.3d 1048, 1056 (10th Cir.1995) (<HOLDING>), the district court found that Mr. Horey’s
holding that counsel could have reasonably determined that the trial court would not sustain a rule 403 objection therefore counsels failure to object to this evidence was not deficient performance holding that counsels failure to object to use of an inapplicable controlled substance conviction tb enhance a sentence under  4b11 is deficient performance under  strickland recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense holding that failure to object to properly admitted evidence was not deficient performance by trial counsel holding that counsels failure to file appeal was not deficient performance under strickland where the petitioner in  2255 action did not direct counsel to file an appeal and acquiesced in counsels decision to pursue as an alternative a reduction in sentence