Kristopher Hamberg was convicted of conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of two counts of using a firearm during a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Hamberg was sentenced to 276 months’ imprisonment on the conspiracy count, 84 months’ imprisonment on the first firearm count, and 300 months’ imprisonment on the second firearm count. The district court ordered that the sentences be served consecutively, resulting in a total sentence of 660 months’ imprisonment. The conviction and sentence were affirmed on direct appeal.
United States v. Hamberg,
I.
The evidence at trial showed that Ham-berg became involved in drug dealing activities in the Fargo, North Dakota, area in 2003. Jason Burnside began purchasing methamphetamine from Hamberg that summer. By August of 2003, Burnside estimated that he owed Hamberg approximately $400 for methamphetamine.
This debt appears to have been a motivating factor in the two instances of fire
In the second incident, Burnside accompanied Anthony Francis to an apartment for the purpose of obtaining methamphetamine. Francis then alerted Hamberg, who came to the apartment and assaulted Burnside. Witnesses testified that Ham-berg struck Burnside in the face with a gun and that during the assault the gun discharged, although the bullet did not hit anyone.
The incident in which Hamberg threatened Duursma was the basis for the first firearm count; the incident in which Ham-berg assaulted Burnside was the basis for the second. At sentencing, the district court stated that “the way the court reads the statute, that is a minimum mandatory consecutive seven years for brandishing,” and for the incident when the firearm discharged “a minimum mandatory additional consecutive twenty-five years.” Sentencing Tr. at 665; see 18 U.S.C. §§ 924(c)(1)(A)(ii) and (C)(1). Hamberg contends that a single underlying drug offense, the conspiracy, cannot support multiple convictions under 18 U.S.C. § 924 for use of a firearm in furtherance of the drug offense. He argues that his counsel’s failure to object to the consecutive terms of imprisonment at sentencing constitutes ineffective assistance of counsel.
II.
We review
de novo
the denial of a § 2255 motion and review any underlying factual findings for clear error.
United States v. Hernandez,
Under
Strickland,
a petitioner must show that his counsel’s performance was both deficient and prejudicial to obtain relief.
Id.
at 687,
Hamberg argues that, because there is a circuit split on the issue of whether a single underlying drug offense can support multiple convictions for use of a firearm in furtherance of the drug offense, his counsel was deficient by failing to object to the consecutive sentences on the two firearms counts. Hamberg concedes, however, that
United States v. Lucas,
We disagree with Hamberg’s contention that competent counsel would have “preserved the issue through objection for presentation through en banc review or a petition for writ of certiorari.” Appellant’s Br. at 7. We have held that “[a] failure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer’s services ‘outside the wide range of professionally competent assistance’ sufficient to satisfy the Sixth Amendment.”
New,
Hamberg’s counsel acted within the range of professional competence when he chose not to object to the district court’s application of the settled law. Because counsel’s performance was not deficient, Hamberg’s claim of ineffective assistance fails.
III.
The judgment is affirmed.
Notes
. The Honorable Ralph R. Erickson, Chief Judge, United States District Court for the District of North Dakota.
. We note that Hamberg is correct that the majority of our sister circuits have reached the opposite conclusion.
See United States v. Diaz,