Auman v. U.S., 94-1937

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: JOHN R. GIBSON
• Citation: 67 F.3d 157
• Parties: Richard Faye AUMAN, Sr., Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 94-1937,94-1937
• Decision Date: 07 December 1995

Page 157

67 F.3d 157 Richard Faye AUMAN, Sr., Appellant,
v.
UNITED STATES of America, Appellee. No. 94-1937. United States Court of Appeals,
Eighth Circuit. Submitted May 17, 1995.
Decided Oct. 5, 1995.
Rehearing and Suggestion for Rehearing En Banc Denied Dec.
7, 1995. ^*

Page 159

Virginia Guadalupe Villa, Federal Public Defender, Minneapolis, Minnesota, argued, for appellant.

Paul Anthony Murphy, Asst. U.S. Attorney, Minneapolis, Minnesota, argued, for appellee.

Before FAGG, WOOD ^** and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Richard Faye Auman, Sr., appeals from the district court's ¹ denial of his motion under 28 U.S.C. Sec. 2255 (1988). Auman claims that the district court should not have sentenced him as a career offender and that, in so doing, it erroneously classified his 1985 conviction for possession of a controlled substance as a crime of violence under U.S.S.G. Sec. 4B1.2 (Nov.1994), based on his simultaneous possession of firearms. Auman also claims ineffective assistance of counsel. The district court rejected both arguments. We affirm.

In 1989, Auman pled guilty to possession of methamphetamine with intent to distribute. At sentencing, the district court received certified copies of Auman's convictions and adopted the findings of Auman's presentence report, which described the 1985 conviction as follows:

In this case on November 15, 1984, a search warrant was obtained for the residence at 3114 Upton Avenue North, Minneapolis, Minnesota. At the time of execution defendant was in his automobile parked in the rear of the house. He was held there. Seized during the execution was a Smith and Wesson Model 19, .357 nickel-plated hand gun.... A Titan .25 caliber automatic was found on the floor of the bathroom. Also seized was a quantity of white powder, a white capsule with syringes, spoon, and cotton. White powder and pills were found on the defendant. The white powder was found to be cocaine and methamphetamine.

The district court determined that the present conviction, the 1985 conviction, and a 1980 felony conviction for assault, each qualified as "either a crime of violence or a controlled substance offense" for purposes of U.S.S.G. Secs. 4B1.1 and 4B1.2. Accordingly, the court determined that Auman was a career offender and sentenced him to 210 months imprisonment.

Auman appealed his sentence, claiming that the court's consideration of his 1985 conviction violated both 21 U.S.C. Sec. 851 (1988) and his plea agreement. United States v. Auman, 920 F.2d 495, 497 (8th Cir.1990) (Auman I ). He did not appeal on the grounds raised here. We affirmed. Id. at 498.

Page 160

Auman next moved for an order vacating and reconsidering his sentence under 18 U.S.C. Sec. 3742(a) (1988), arguing that the district court should have reduced his offense level by two levels for acceptance of responsibility and that the 1985 conviction did not qualify as a crime of violence or controlled substance offense under the career offender guidelines. The district court agreed that Auman would be entitled to a two-level reduction for acceptance of responsibility, ² but found that 210 months would still be included within the sentencing range. United States v. Auman, Crim. No. 4-89-62, slip op. at 2-3 (D.Minn. May 12, 1992). The court reaffirmed its reliance on the presentence report and examined the facts underlying the predicate convictions. The court found that the assault conviction was a crime of violence, as was Auman's 1985 conviction "under its particular factual circumstances." Id. at 2. The court noted that "[t]wo handguns were seized at the same time that the drugs were seized, and the presence of these handguns in proximity with the illegal drugs created 'a serious potential risk of physical injury to another' " under U.S.S.G. Sec. 4B1.2(1)(ii). Id. Accordingly, the court refused to modify its career offender enhancement or the sentence imposed. Id. at 3. Auman appealed to this court. We dismissed his appeal, holding that the district court lacked jurisdiction over the initial motion under either 18 U.S.C. Sec. 3582 (1988 & Supp. V 1993) or Sec. 3742. United States v. Auman, 8 F.3d 1268 (8th Cir.1993) (Auman II ).

Auman then filed this motion under 28 U.S.C. Sec. 2255, arguing that the 1985 conviction was not a proper predicate for career offender status. The government argued that the claim was barred by Auman's procedural default in failing to raise this issue on direct appeal. The district court held that the procedural default rule does not bar consideration of a claim that a "sentence was in excess of the maximum authorized by law." Auman v. United States, Crim. No. 4-89-62, slip op. at 2 (D.Minn. Mar. 29, 1994). The district court reexamined the facts surrounding the conviction and held that, although the conviction was not a "controlled substance offense" for career offender purposes, ³ it was a crime of violence ⁴ because the proximity of the handguns and the drugs created "a serious potential risk of physical injury to another" under U.S.S.G. Sec. 4B1.2(1)(ii) (Nov.1994). Auman v. United States, Civ. No. 4-93-1050, slip op. at 3-4 (D.Minn. Mar. 29, 1994). The court thus held that Auman was properly sentenced as a career offender. Id. at 4.

Auman also claimed ineffective assistance of counsel based upon counsel's failure to object to the use of the 1985 conviction as a predicate offense under the career offender guidelines. Id. at 4. The district court rejected this argument. Id. at 5-6.

On appeal, Auman reiterates these arguments. Specifically, Auman argues that the district court should not have used the 1985 possession of a controlled...