153 F.3d 439 (7th Cir. 1998), 97-3302, Buggs v. United States

Docket Nº:97-3302.
Citation:153 F.3d 439
Party Name:Carl L. BUGGS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:August 17, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 439

153 F.3d 439 (7th Cir. 1998)

Carl L. BUGGS, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 97-3302.

United States Court of Appeals, Seventh Circuit

August 17, 1998

Submitted April 21, 1998.[*]

Page 440

Carl L. Buggs (submitted), Elkton, OH, Petitioner-Appellant Pro Se.

Andrew B. Baker, Jr., Office of the United States Attorney, Dyer, IN, for Respondent-Appellee.

Before, FLAUM, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Carl L. Buggs was convicted by a jury of numerous firearms and narcotics offenses. He appealed his sentence and we affirmed the judgment. See United States v. Buggs, 904 F.2d 1070 (7th Cir.1990). Mr. Buggs then filed a petition under 28 U.S.C. § 2255. He argued that he had received ineffective assistance of counsel at his sentencing and on direct appeal. He also contended that the calculation of the amount of drugs used in his sentencing was erroneous due to a change in the Sentencing Guidelines and that his 18 U.S.C. § 924(c) conviction was invalid in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The district court denied his petition and Mr. Buggs appealed.

Page 441

I

BACKGROUND

Our earlier opinion sets forth in detail the facts of the case. We shall assume familiarity with that rendition and confine this description to a brief summary.

In 1988, Mr. Buggs discussed with William Perry a plan to establish a narcotics distribution operation: Mr. Buggs would provide Perry with cocaine and heroin to sell. Unbeknownst to Mr. Buggs, Perry was acting as an informant for law enforcement officers. On June 16, 1988, Officer John T. Jones accompanied Perry to a house in South Bend, Indiana, to purchase heroin from Mr. Buggs. While these three individuals waited in the living room of the house for the heroin to be delivered, Mr. Buggs became nervous about the delay. After placing a telephone call, Mr. Buggs went into a bedroom and returned to the living room carrying a large pistol. Both Officer Jones and Perry observed Mr. Buggs carry the firearm into the room. Mr. Buggs then placed the weapon next to him on the couch and proceeded to measure out two to three ounces of cocaine into individual packets. Eventually, an individual arrived with the heroin; Perry then purchased approximately one-half ounce of heroin from Mr. Buggs. Perry and Mr. Buggs also discussed arrangements for a second transaction, and Mr. Buggs agreed to provide three to seven ounces of heroin at $800 per ounce.

On June 30, 1988, Officer Jones and Perry returned to Mr. Buggs' house to purchase additional heroin. Mr. Buggs informed them that the heroin had been "overcut" and therefore was unsalable, but assured them that he could obtain the heroin that he had agreed to sell. Officer Jones gave Mr. Buggs $1,500 as partial payment for an expected four to six ounces of heroin. Mr. Buggs stated that he could obtain the heroin that afternoon and that they should call his house later that day. Perry subsequently made several calls to Mr. Buggs' residence and spoke each time to Mr. Buggs' fiancee. During the last conversation, Perry was told that Mr. Buggs had been unable to obtain the heroin but would be returning to his home shortly with a substitute. As he was driving home, however, Mr. Buggs' car was stopped and he was arrested by officers conducting surveillance. A search of the car revealed rock cocaine, powder cocaine and marijuana.

At trial, a jury found Mr. Buggs guilty of the following offenses: (1) possession with intent to distribute heroin on June 16, 1988; (2) possession with intent to distribute cocaine on June 16, 1988; (3) possession with intent to distribute cocaine on June 30, 1988; (4) conspiracy to distribute and possess with the intent to distribute heroin; (5) possession of a firearm by a convicted felon; and (6) using or carrying a firearm during and in relation to a narcotics offense. In due course, we affirmed the judgment of conviction.

Mr. Buggs later brought this petition under 28 U.S.C. § 2255. The district court denied relief. It then granted Mr. Buggs a certificate of appealability on only two issues: (1) whether his counsel provided ineffective assistance at sentencing and on appeal; and (2) whether the amount of drugs involved in the offense was erroneously calculated. On appeal, Mr. Buggs' brief lists five issues, although only three are actually argued: (1) whether Mr. Buggs was provided ineffective assistance of counsel at sentencing and on appeal with respect to the amount of drugs attributable to him; (2) whether changes in the Sentencing Guidelines warrant a change in Mr. Buggs' sentence; and (3) whether Mr. Buggs' conviction under 18 U.S.C. § 924(c) is invalid in light of Bailey.

II

DISCUSSION

  1. Ineffective Assistance of Counsel

    Mr. Buggs argues that his counsel was ineffective because he failed to argue that the district court incorrectly included the negotiated four ounces of heroin from June 30, 1988, in determining his sentence. Mr. Buggs asserts that counsel should have argued for the exclusion of the four ounces for two reasons. First, he argues that he was unable to obtain heroin on June 30, 1988, and

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    that the cocaine and marijuana...

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