Cofske v. United States ( 2002 )

United States Court of Appeals
For the First Circuit
No. 00-2479
RANDALL J. COFSKE,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Robert J. Bray for petitioner.
Randall J. Cofske on Motion for Emergency Hearing pro se.
Donald L. Cabell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
respondent.
May 13, 2002
BOUDIN, Chief Judge. Randall Cofske appeals from the
district court's denial of his motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence. In substance, Cofske claims that
his trial counsel and appellate counsel were ineffective in failing to
object to the calculation of his sentence under the Sentencing
Guidelines. Specifically, he argues that when he committed the federal
offense for which he was being sentenced--possession of stolen firearms
in violation of 18 U.S.C. § 922(j) (1994)--he did not have the "prior
conviction" that was used to increase his base offense level ("BOL")
under U.S.S.G. § 2K2.1 (a)(4) (1995).
Cofske committed the federal offense in 1992, but we start
with the earlier state offense that lies at the heart of his present
appeal. On October 20, 1989, Cofske was charged in the Ware District
Court in Massachusetts with breaking and entering in the daytime with
the intent to commit a felony. Under the two-tier trial system then
used by Massachusetts, Cofske waived his right to a jury trial and
instead elected a bench trial in the Ware District Court (the first
tier).1 On August 17, 1990, the judge found Cofske guilty of the charge
1
As explained in United States v. Morillo, 178 F.3d 18, 21-
22 n.5 (1st Cir. 1999):
Under this 'two-tier' system, a defendant was
entitled to a six person jury trial at the 'first
tier.' The defendant could waive this right and
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and sentenced him to 60 days in prison. Cofske then appealed, seeking
a trial de novo (the second tier) before a jury of six; under
Massachusetts law this appeal vacated the initial conviction. Wilson
v. Honeywell, Inc., 569 N.E.2d 1011, 1015 (Mass. 1991). He was
convicted again by a jury in the Northampton District Court on January
23, 1993.
After Cofske's conviction and appeal in Ware, but before his
conviction in Northampton, Cofske committed the federal firearms
offense. On or about October 27, 1992, Cofske and two other men broke
into a Salem, Virginia, residence and stole about ten handguns. Using
Cofske's car, they then transported the guns to Massachusetts where
they were later sold. The grand jury indicted Cofske on July 17, 1996,
for possession of stolen firearms in violation of 18 U.S.C. § 922(j)
and for transportation of stolen firearms in violation of 18 U.S.C. §
922(i).
On March 3, 1997, pursuant to a written plea agreement,
Cofske pleaded guilty to the charge of possession of stolen firearms.
As part of that agreement the prosecution dismissed the transportation-
elect a bench trial instead. Defendants who
elected a bench trial could appeal the outcome to
the 'second tier.' At this level, a defendant
would receive a de novo jury trial unless he
again elected a bench trial before a second
judge.
In 1994, Massachusetts abolished the two-tier trial system in
the Commonwealth's district courts.
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of-stolen-weapons charge and agreed to recommend a single three-level
specific offense adjustment (based on the number of firearms involved)
offset by a three-level reduction for acceptance of responsibility;
Cofske in turn agreed (among other things) to take the position at
sentencing that his base offense level should be set at 20 pursuant to
U.S.S.G. § 2K2.1(a)(4)(a), which mandated a BOL of 20 for firearms
possession if "the defendant had one prior felony conviction of either
a crime of violence or a controlled substance offense."2
The original presentence report ("PSR") listed Cofske's BOL
as 12, concluding that he had no such prior conviction. After the
government objected, the probation officer amended the PSR to include
the Massachusetts breaking and entering conviction already described
and increased his BOL to 20. Cofske's attorney urged in turn that the
breaking and entering charge did not become a conviction until January
23, 1993 (at the second tier), which was after the federal offense, and
therefore could not be counted as a prior conviction under U.S.S.G. §
2K2.1. The probation officer responded that the 1990 first tier
conviction was the relevant prior conviction, and the PSR left the BOL
at 20.
2
References, unless otherwise indicated, are to the 1995
edition of the guidelines, as updated by a 1996 pamphlet. This
is the set of guidelines in effect at the time of Cofske's
sentencing in mid 1997. The pertinent provision of section
2K2.1 as of mid 1997 is set forth in an addendum to this
opinion.
-4-
Cofske was sentenced on July 15, 1997. At sentencing,
Cofske's attorney abandoned the argument that Cofske did not have a
prior conviction and stated that the revised PSR "took up
acknowledgment of the government's objection which was quite correct
and part of my error at the time. It starts out with a base level of
20 pursuant to 2K2.1(a)(4)." The district court then adopted the
calculations of the revised PSR, which included the breaking and
entering conviction in both Cofske's criminal history category ("CHC")
calculation under section 4A1.1, and his BOL under section 2K2.1.
The court determined that Cofske's BOL was 20, his adjusted
offense level was 24,3 and his CHC was V; the applicable guideline
sentence range was 92 to 115 months. After denying Cofske's motion for
a downward departure, the district court sentenced Cofske to 92 months
in prison. Cofske appealed--not raising the issue he raises here--and
this court affirmed both his conviction and sentence. United States v.
Cofske, 157 F.3d 1 (1st Cir. 1998), cert. denied, 526 U.S. 1059 (1999).
3
The court imposed a three-level upward adjustment under §
2K2.1(b)(1)(C) because the offense involved between 8 and 12
firearms, and a four-level upward adjustment under § 2K2.1(b)(5)
because Cofske possessed the firearms in connection with a
felony offense or transferred them with reason to believe they
would be used in another felony offense. The district court
then applied a three-level reduction for acceptance of
responsibility, thereby setting Cofske's adjusted offense level
at 24. None of these adjustments is now challenged.
-5-
Cofske then filed a motion under 28 U.S.C. § 2255 asserting
that, at the time of his federal firearms offense, he had not been
convicted of the breaking and entering offense because his 1990 first-
tier conviction in the Ware District Court had been nullified by his
appeal seeking a second-tier de novo jury trial. He further argued
that this conviction was impermissibly used to enhance his BOL and CHC,
and that his trial counsel and appellate counsel were ineffective for
failing to object to its inclusion in his sentence computation.
On May 18, 2000, the district court denied Cofske's motion.
The court found that the 1990 first-tier conviction was the relevant
conviction for purposes of section 2K2.1(a)(4)(A) and that there was no
error in the calculation of Cofske's sentence; it determined that
Cofske was therefore not prejudiced by his counsel's actions, as
required by Strickland v. Washington, 466 U.S. 668 (1984), and found it
unnecessary to evaluate the reasonableness of Cofske's attorney's
decision not to object to the BOL calculation. The district court
later denied Cofske's requests for reconsideration of the decision.
On February 8, 2001, Cofske applied for a certificate of
appealability, 28 U.S.C. § 2253(c)(1), solely to urge that his trial
and appellate counsel were ineffective in allowing his first-tier
conviction to increase his BOL. On April 20, 2001, the district court
denied his application, reaffirming its May 18, 2000, finding and also
holding (in the alternative) that the breaking and entering conviction
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counted as a "prior conviction" even if the correct date of conviction
were deemed January 1993. Cofske v. United States, 143 F. Supp. 2d 85(D. Mass. 2001).
On November 26, 2001, this court granted Cofske's certificate
of appealability and directed the parties to address the following two
questions:
1. Under the Massachusetts two-tier trial court
system in effect at the time of Cofske's
conviction, what is the force and effect of a
district court conviction once the defendant has
appealed to a trial de novo?
2. Does the reference to a "prior felony
conviction" in section 2K2.1(a)(4)(A) include
post-offense convictions?
We also granted Cofske's request for expedited briefing, because on his
calculation, his proper sentence had already expired.
Although the language of 28 U.S.C. § 2255 is quite general,
the Supreme Court has restricted collateral attack for claims that do
not allege constitutional or jurisdictional errors; such claims are
said to be cognizable only where the alleged error presents "a
fundamental defect which inherently results in a complete miscarriage
of justice" or "an omission inconsistent with the rudimentary demands
of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962).
Thus, a guideline violation alone is not automatically a basis for
relief under 28 U.S.C. § 2255. Knight v. United States, 37 F.3d 769,
772-73 (1st Cir. 1994).
-7-
However, if the claim is repackaged as one of ineffective
assistance of counsel, as Cofske's is here, it becomes a constitutional
claim. Not every error amounts to ineffectiveness. See Lema v. United
States, 987 F.2d 48, 51 (1st Cir. 1993). An ineffective assistance of
counsel claim will succeed only if the defendant--who bears the burden
on both points, Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir. 1994)--shows
(1) that counsel's performance fell below an objective standard of
reasonableness, and (2) that but for the error or errors, the outcome
would likely have been different, Strickland, 466 U.S. at 687.
Since the absence of any error in sentencing would eliminate
any prejudice, and therefore Cofske's ineffectiveness claim, it is
useful to begin by considering the correctness of the BOL calculation.
At the time of Cofske's sentencing in July 1997, U.S.S.G. §
2K2.1(a)(4)(A) stated that a defendant's BOL for the firearms
conviction should be set at 20 if the defendant "had one prior felony
conviction of either a crime of violence or a controlled substance
offense[.]" However, neither the guideline language nor the commentary
answered the question, "prior to what?"
Certainly the guideline would be satisfied if the "prior
conviction" occurred before the federal crime itself was committed.
But on this reading, we would have to count the Ware District Court
conviction as a prior conviction, even though it had been vacated as a
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result of Cofske's filing an appeal for a second tier trial, months
before Cofske committed the federal offense.
Whether such a vacated conviction still "counts" for
guideline purposes is a matter of federal rather than state law. See
United States v. Mateo, 271 F.3d 11, 15 (1st Cir. 2001). Looking only
at guideline language, one could argue the matter both ways. Before he
committed the federal crime, Cofske "had one prior felony conviction"
of the required class; but before he committed the federal crime, that
conviction had been nullified under state law by his appeal from the
first tier to the second. The commentary was understandably silent on
how to treat this oddity of Massachusetts procedure.
There are policy arguments both ways. If the issue were
pursued in depth, we might want to know more about the reasons for the
two-tier regime and, equally important, whether it led lawyers to use
the first tier merely as a discovery device or an effort to secure
probation or a light sentence. Cf. United States v. Roberts, 39 F.3d
10, 12-13 (1st Cir. 1994). And, of course, whether the first tier
conviction followed a full defense might vary from case to case. If in
general a full defense were offered, federal law might well disregard
the state's penchant to offer the defendant a second bite at the apple.
In all events, the government has chosen here not to argue
that the Ware District Court conviction should count. The concession
has arguments in its favor and the opposing arguments are debatable and
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have not been briefed. For purposes of this case, we accept the
concession, which turns out not to affect the outcome here. Given the
repeal of the two-tier system, it is not clear that the issue will even
arise again so it certainly does not cry out for a definitive
resolution.
This brings us to the district court's alternative ground for
concluding that the prior conviction should count, namely, that even if
the Northampton District Court conviction is controlling, it occurred
"prior" to the federal sentencing, even though after the federal crime
itself. Neither the version of the section 2K2.1 guideline in force in
mid 1997 nor its commentary clearly answers the question whether the
conviction must be prior to the federal crime or only prior to the
sentencing for it.
In fact, the clues to this puzzle--linguistic, policy and
analogical--point in both directions and, prior to a recent amendment
to the guideline described below, the circuits were divided. At the
time of the Cofske's federal sentencing, the circuits were split two to
one in the government's favor (i.e., that any conviction prior to
federal sentencing counted);4 at the time of the recent amendment, the
4Compare United States v. Gooden, 116 F.3d 721, 724-25 (5th
Cir. 1997) and United States v. McCary, 14 F.3d 1502, 1506 (10th
Cir. 1994) (convictions occurring anytime before sentencing
count as prior felony convictions) with United States v. Barton,
100 F.3d 43, 45-46 (6th Cir. 1996) (post-offense convictions do
not count as prior felony convictions).
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government still held the edge with a four-to-three split.5 Obviously,
the issue was close and reasonable courts could disagree.
Part of the problem is that the guidelines elsewhere contain
two different approaches to "prior"-ness. One, used in determining
prior criminal history under chapter 4A, looks to whether a prior
"sentence" occurred before the federal sentence. U.S.S.G. § 4A1.2,
application note 1. The other, used to establish whether the defendant
is a career offender under chapter 4B, counts prior "convictions" only
if they occurred before commission of the federal crime itself.
U.S.S.G. § 4B1.2(3). In its own context, each approach makes some
sense. United States v. Leviner, 31 F. Supp. 2d 23, 28-30 (D. Mass.
1998).
The issue has now been resolved for the future in Cofske's
favor by a 2001 amendment to section 2K2.1 (reprinted in the addendum)
providing that a defendant's BOL should be increased to 20 where "the
defendant committed any part of instant offense subsequent to
sustaining one felony conviction of either a crime of violence or a
controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A) (2001)
(emphasis added). The amendment's "reason for adoption" adopts "the
5
United States v. Laihben, 167 F.3d 1364, 1366 (11th Cir.
1999), and United States v. Pugh, 158 F.3d 1308, 1311 (D.C. Cir.
1998) followed the approach of the Fifth and Tenth Circuits,
while United States v. Oetken, 241 F.3d 1057, 1059 (8th Cir.
2001) and United States v. Pedragh, 225 F.3d 240, 245 (2d Cir.
2000), followed the approach of the Sixth Circuit.
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minority view" and the chapter 4B analogy, Amendment 630, Nov. 1, 2001,
but it was not made retroactive to Cofske's case. U.S.S.G § 1B1.10
(2001). One could as easily call it a revision as a clarification.
Without regard to the amendment, we think that prior
convictions should count, for purposes of section 2K2.1 as it stood
when Cofske was sentenced, only if they occurred before the federal
crime. This was the "minority" view in the circuits prior to the
recent guideline amendment, but it has in its favor a modest piece of
linguistic evidence, Pedragh, 225 F.3d at 245, a decent analogy to the
prior-felon "status" approach used in section 4B, Leviner, 31 F. Supp.
2d at 28-30, and a better claim to adoption by cross-reference in a
tangled set of cross references in 2K2.1's then-existing commentary.6
Both sides of the dispute can be traced through the cited cases, see
notes 4-5, above.
Still, our current view of the merits hardly establishes that
Cofske's counsel was ineffective in 1997 in failing to press the
argument for a BOL of 12. The guideline's original wording is obscure
and a majority of circuits both before and after read the pre-amendment
6
Section 2K2.1, app. note 5, said that "prior felony
conviction(s)" is defined in "§4B1.2 . . . Application Note 1 of
the Commentary" which in turn shed no light on the question
before us but was at least a reference to chapter 4B rather than
4A; chapter 4B's approach, as noted in text, supports Cofske.
Confusingly, application note 5 and application note 1 also
contain cross-reference to chapter 4A, although arguably less in
point.
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guideline in favor of the prosecutor. If Cofske's counsel had simply
overlooked the argument, it is uncertain that this would have counted
as incompetence, even though courts tend to be somewhat less forgiving
where counsel altogether overlooks a possible objection or opportunity.
3 LaFave, Israel & King, Criminal Procedure § 11,10(c), at 714-15 (2nd
ed. 1999).
However, Cofske's trial counsel did not overlook the issue;
the PSR resolved it in Cofske's favor and his counsel objected when the
probation officer reversed ground and raised the recommended BOL to 20.
At sentencing, Cofske's counsel then abandoned the objection. If
counsel gave away without any cause a known argument which had at least
some basis in guideline language and policy, this would at least take
some explaining, especially where (as here) the jump in the BOL from 12
to 20 greatly increased the guideline sentence range.
Yet there is an obvious reason why counsel must have thought
it in Cofske's interest to abandon the claim of error. In the plea
agreement, the government had agreed (1) to drop the second count of
the indictment, (2) to support a three-level reduction for acceptance
of responsibility, (3) to seek an adjusted offense level of 20 (and not
a higher level), and (4) not to seek any upward departure.7 Cofske in
7At oral argument, the government summarized the potential
changes that it could have sought: an upward departure on the
ground that past criminal history was underrepresented, U.S.S.G.
§ 4A1.3; a two-level obstruction of justice adjustment for false
statements to the court, U.S.S.G. § 3C1.1; and a four-level
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turn made concessions of his own; and these included not only a guilty
plea on the first count but also a commitment to take the position at
sentencing that the BOL "should be 20 . . . because the defendant had
one prior felony conviction for a crime of violence."
It is virtually certain that prior to the sentencing, defense
counsel noticed, or was reminded of, this commitment. Nothing else
explains counsel's about face at the hearing after previously
contesting the issue. Any breach of the agreement by Cofske permitted
the government to withdraw from the plea agreement and to use against
Cofske any statements he had made. Conceivably, the government could
have asked to reinstate the second count; and certainly, it could have
urged any sentence it chose including one based on no acceptance of
responsibility plus upward departures on at least two different
grounds.
Thus, the decision to stick with the BOL of 20 was almost
certainly a judgment call to retain the advantages of a plea and to
forgo an argument for a lower BOL already rejected by two out of three
circuits. It is impossible to describe such a choice as incompetent
representation. Nagi v. United States, 90 F.3d 130, 134-35 (6th Cir.
1996). Indeed, given the threatened consequences to Cofske of backing
adjustment under U.S.S.G. § 2K2.1(b)(5) for possessing or
transferring firearms in connection with another felony offense.
Although the court on its own imposed the section 2K2.1(b)(5)
adjustment, the government did not seek it.
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out of the plea agreement, it is impossible to see how Cofske could now
satisfy the prejudice prong of Strickland by showing that he would have
been better off if his counsel had challenged the use of the state
conviction.
If anything turned on counsel's precise thought process, we
would remand for an evidentiary hearing, but in this case none is
necessary. The Strickland test, as already noted, is an objective one;
as long as counsel performed as a competent lawyer would, his or her
detailed subjective reasoning is beside the point. Here, counsel was
aware of the BOL objection and, given the downside risks already
described, trial counsel had ample reason to comply at sentencing with
commitments undertaken in the plea agreement, whose soundness (taken as
a whole) is not even directly disputed by Cofske.
This brings us to Cofske's alternative ground for relief,
namely that his appellate counsel was incompetent in not pursuing a
claim to a BOL of 12 on his direct appeal. After all, at this point
Cofske seemingly had the benefit of the government's concessions; why
then not try to get something more--namely, a reduced BOL--even if the
chances of success appeared slim? The plea agreement precluded this
tactic at the sentencing hearing; but it did not bar either side from
appealing. Indeed, the agreement provided (unnecessarily) that errors
in sentencing could be appealed under 18 U.S.C. § 3742.
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Of course, Cofske's concession in the district court that a
BOL of 20 was correct might have been taken as a conclusive waiver, not
just a forfeiture subject to relief for plain error, but then again it
might not be treated as a waiver; the law in this area is far from
uniform, compare United States v. Smith, 918 F.2d 664, 668-69 & n.1
(6th Cir. 1990) (per curiam), with United States v. Nguyen, 46 F.3d
781, 783 (8th Cir. 1995), and various interpretations of the plea
agreement are possible. Thus, it may technically have been open to
appellate counsel to challenge the adverse BOL finding on direct
appeal.
It might be enough to say that, viewed as of the time of
appeal (which is what matters in judging competence of appellate
counsel), the claim for a lower BOL was not especially promising: the
case law was divided, the guideline and commentary were both obscure,
and the 2001 amendment did not then exist. Other claims were available
for an appeal, which was in fact taken, and courts have regularly said
that appellate counsel is often well advised to choose the most
promising arguments and is not obliged to crowd a brief with less
promising ones which may detract. Jones v. Barnes, 463 U.S. 745, 751-
54 (1983); see also Burkoff & Hudson, Ineffective Assistance of Counsel
§ 9.04[2][b] (Supp. 2001) (collecting cases).
Here, a narrower and even stronger reason exists for
rejecting an incompetency attack. On appeal, the claim to a BOL of 12
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could succeed only if plain error were established; even without the
plea agreement, a failure to press the BOL claim at sentencing was at
least a forfeiture. However one might come out on the merits of the
BOL issue, the BOL of 20 was not plain error for the reasons already
indicated. For all we know, a panel of this court sitting in 1997 might
easily have followed the then-majority view and said that 20 was the
correct figure.
But there is more. Even if the error were plain, any
competent appellate counsel would have had to consider not only the
upside but also the downside of attacking the district court's BOL
finding. At the very least, such an attack by Cofske would have
exposed him to arguments by the government that--if resentencing were
ordered--the resentencing should be open-ended and the government
should be freed of its own commitments to support a downward adjustment
for acceptance of responsibility and to forego various upward
departures.
Once again, the law in this area is not crystal clear; just
what the government might demand as of right, and (separately) what the
appeals and sentencing courts might allow as a matter of discretion,
could both be debated and could turn in some measure on the surrounding
circumstances. However, Cofske is wrong in thinking that he
necessarily had a right to cherry-pick, correcting the BOL in his favor
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while holding everything else in the sentencing calculus constant.8 An
appellate counsel, even with a winning argument, might reasonably have
hesitated to press it if the downside risk seemed too great.
For present purposes, it is enough that the BOL of 20 was not
plain error and that this would almost certainly have defeated a direct
appeal at the time in view of the forfeiture (also reasonable) at the
sentencing stage. Given the minimal prospects of success, appellate
counsel's failure to make such an argument on direct appeal does not
mark counsel as incompetent. This is a legal judgment that we can
easily make on this appeal and without the need for a remand.
Courts are driven as much by facts as by doctrine, and in
criminal proceedings no panel of this court readily closes the books on
a manifest injustice. Nothing of the kind is present here. The 12
versus 20 BOL issue was known at defense counsel at the time of
sentencing; a rational choice was made to forego the argument for 12 in
order to obtain other sentencing advantages. Even with the benefit of
hindsight, there is no clear likelihood that a different choice by
counsel would have given Cofske a lower net sentence.
8
On any of several theories, the government could have
sought to be relieved of its obligations under the plea
agreement, see United States v. Bunner, 134 F3d 1000, 1004-5 (10
Cir. 1998); United States v. Barron, 127 F.3d 890, 895-96 (9th
Cir. 1997); United States v. Sandoval-Lopez, 122 F.3d 797, 800
(9th Cir. 1997). Further, the district court would not
automatically be limited on remand by what the government chose
to urge. United States v. Rodriguez, 112 F.3d 26, 29-30 (1st
Cir. 1997).
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Affirmed.
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PERTINENT PROVISIONS OF SECTION 2K2.1
At the time of sentencing
§ 2K2.1Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition: Prohibited Transactions
Involving Firearms or Ammunition
(a) Base Offense Level (Apply the Greatest):
. . .
(4) 20, if the defendant --
(A) had one prior felony conviction
of either a crime of violence or a
controlled substance offense; or
. . .
(7) 12, except as provided below, or
. . .
(b) Specific Offense Characteristics
(1) If the offense involved three or
more firearms, increase as follows:
Number of Firearms Increase in Level
. . .
(C) 8-12 add 3
. . .
After the 2001 amendment
. . .
(4) 20, if--
(A) the defendant committed any
part of the instant offense
subsequent to sustaining one felony
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conviction of either a crime of
violence or a controlled substance
offense; or
. . .
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