Buco v. United States ( 1993 )


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  •                     [NOT FOR PUBLICATION]
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 93-1222
    FRANK A. BUCO,
    Petitioner,
    v.
    UNITED STATES OF AMERICA,
    Respondent.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Edward F. Harrington, U.S. District Judge]
    Before
    Selya, Boudin and Stahl,
    Circuit Judges.
    Frank A. Buco on brief pro se.
    A. John Pappalardo,  United States Attorney, Wendy  Warring,
    Trial Attorney,  U.S. Department  of  Justice, New  England  Bank
    Fraud  Task Force, and Margaret R.  Hinkle, Director, New England
    Bank Fraud Task Force, on brief for appellee.
    June 10, 1993
    Per Curiam.  On  this appeal from the denial of a motion
    under  28 U.S.C.   2255  filed by petitioner  Frank Buco, the
    government has  conceded that an error,  unnoticed by anyone,
    was made in the calculation of the sentencing guideline range
    when petitioner was originally sentenced.  Buco was convicted
    of  bank fraud  and  related offenses  and,  at the  time  of
    sentencing in 1991, a total offense level of 19 was computed,
    including a 3-point upward adjustment for an aggravating role
    and  a 2-point upward adjustment  for abuse of  a position of
    trust.  U.S.S.G.    3B.1.1(b),  3B1.3 (1990).   Buco did  not
    appeal the sentence.
    Although  the  guidelines  in  effect  at  the  time  of
    sentencing  permitted  both  adjustments, the  guidelines  in
    effect at the time of the offenses (which apparently ended in
    1989) did not.  Compare U.S.S.G.   3B1.3 (1989) with U.S.S.G.
    3B1.3 (1990) (as amended by Amendment 346).  The government
    concedes that the  2-point upward adjustment  for abuse of  a
    position of trust was impermissible  under the Ex Post  Facto
    Clause.   See Miller v. Florida, 
    482 U.S. 423
    , 429-35 (1987).
    But  it  also  contends  that  the  issue  was  not  properly
    preserved and that, in any event, Buco was not prejudiced.
    The guideline  range computed at the  time of sentencing
    was   30-37  months,   but   departing   downward   (somewhat
    reluctantly) to reflect Buco's cooperation  with authorities,
    the district court imposed a 27-month sentence.   The correct
    guideline range, based on the government's concession, is 24-
    30 months.  The government argues that  the 27-month sentence
    was the  minimum the district  court deemed appropriate.   In
    rejecting the government's suggestion of a departure down  to
    21 months, the district  court stated that it would  not drop
    below  27 months  because of  Buco's greater  involvement and
    culpability in  comparison to his  codefendants who  received
    sentences  of  up  to 24  months.    Buco  contends that  the
    district court,  utilizing the correct guideline range, would
    have  imposed  a  21-month  sentence  (the  proper  guideline
    minimum less three months for cooperation).
    Under  United  States v.  Frady,  
    456 U.S. 152
    ,  164-68
    (1982),  a procedurally  defaulted  habeas claim  may not  be
    reviewed on the merits  unless the petitioner can  show cause
    for  the default as well as actual prejudice from the alleged
    violation.   An  exception  to Frady's  cause plus  prejudice
    requirement exists where failure to consider the claim on the
    merits would result in  a fundamental miscarriage of justice.
    Coleman  v. Thompson,  
    111 S.Ct. 2546
    , 2564  (1991).    Buco
    contends that  the probation officer's error  in applying the
    amended  guidelines  in  Buco's  presentence  report  and the
    prosecutor's failure  to identify  the  error are  sufficient
    cause for his procedural default.  We do not agree.
    In  order  to establish  "cause"  for  the default,  the
    petitioner must show that  some "objective factor external to
    the defense  impeded   [defense] counsel's efforts  to comply
    with .  . . the procedural rule."  Murray v. Carrier, 477 U.S
    478,  488 (1986).  Here  the legal error  was discoverable at
    the  time of  sentencing, and  the failure  of  the probation
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    officer  and  prosecutor to  discover  the  mistake does  not
    excuse defense counsel's own inadvertence any more than would
    a trial  court's failure to  recognize error in  its rulings.
    There   was  no  external  impediment  to  defense  counsel's
    compliance  with   the  rule  requiring  that  objections  to
    guideline computations be made at or before sentencing.   The
    lawyer  either  neglected  to read  the  pertinent  guideline
    provisions  or else did so but missed the significance of the
    limitation in the pre-1990 version of the guidelines.
    It also appears unlikely that the prejudice  requirement
    could be  met.    "To  show  ``prejudice,'  a  defendant  must
    demonstrate  ``a  reasonable  probability that,  but  for [the
    alleged]  erro[r], the  result of  the proceeding  would have
    been different.'"   Sawyer v.  Whitley, 
    112 S.Ct. 2514
    , 2532
    (1992) (concurring  opinion of  Mr. Justice Blackmun).   From
    the remarks made  at sentencing, it seems  to us at  least as
    likely that the present sentence would have been imposed even
    if  the correct guideline range had been used as the starting
    point.    However, this  issue need  not be  resolved because
    unless  both cause  and prejudice  are shown,  the procedural
    default  bars the  petition unless  a miscarriage  of justice
    would result.  United  States v. Ortiz, 
    966 F.2d 707
    , 717-18
    (1st Cir.  1992), relied upon by  petitioner, involved direct
    appeal where the preconditions to habeas relief do not apply.
    -4-
    The contours of the "miscarriage of justice" concept are
    not precisely delimited, and different standards may apply in
    different  contexts.    See  United  States  v.  Orlando,  
    61 U.S.L.W. 4421
    ,  4424 (1993).  But the  Supreme Court's recent
    collateral review  jurisprudence shows  that when a  sentence
    falls  within  the  correct  guideline  range,  there  is  no
    miscarriage of justice even though it is possible that absent
    a mistake the sentencing court might have imposed a different
    sentence.  Sawyer,  
    112 S. Ct. at 2518-23
    .   Without  laying
    down  a blanket rule, we do not think that this case presents
    a miscarriage of justice--a  standard more stringent than the
    prejudice requirement--and we  therefore affirm the dismissal
    of the petition.
    It is so ordered.
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