Buggs v. U.S.

• Decision Date: 21 April 1998
• Docket Number: No. 97-3302,97-3302
• Citation: 153 F.3d 439
• Parties: Carl L. BUGGS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 439

153 F.3d 439

Carl L. BUGGS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 97-3302.

United States Court of Appeals, Seventh Circuit.

Submitted April 21, 1998. ^*

Decided Aug. 17, 1998.

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.

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

A. 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 that the cocaine and marijuana he was carrying when he was apprehended was the substitute for the negotiated amount of heroin. He asserts that counting these "substitute" drugs and the negotiated heroin resulted in "double counting." Second, he argues that the negotiated heroin should not have been counted pursuant to U.S.S.G. § 2D1.4 (1988).

In order to establish ineffective assistance of counsel, a petitioner must show that his counsel's representation fell below an objective standard of reasonableness and that the deficient performance rendered the proceedings unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Mr. Buggs clearly fails to meet the first prong of this test on his double-counting argument. Both at sentencing and on direct appeal, Mr. Buggs' counsel argued that the negotiated amount of heroin should not be counted because Mr. Buggs planned to substitute other drugs for the negotiated amount of heroin. In the objections to the Presentence Investigation Report ("PSR"), counsel stated: "[T]he government's agents were advised that the deal for the heroin would not go down, and that something else (31 grams of cocaine) would be delivered. Therefore, the cocaine canceled out the heroin deal." PSR Addendum, Objection No. 1. Counsel also argued on direct appeal that the negotiated, but undelivered, amount of heroin should not be included. See United States v. Buggs, 904 F.2d 1070, 1077-78 (7th Cir.1990). Accordingly, counsel essentially presented the double-counting argument that Mr. Buggs asserts his counsel failed to make; therefore, his performance did not fall below an objective standard of reasonableness.

With respect to U.S.S.G. § 2D1.4 (1988), although counsel did not argue that Mr. Buggs was not reasonably capable of producing the four ounces of heroin, Mr. Buggs was not prejudiced by this omission because, as we held on direct appeal, there was no evidence that Mr. Buggs was not reasonably capable of producing the negotiated amount. ¹ See Buggs, 904 F.2d at 1078. Therefore, Mr. Buggs did not receive ineffective assistance of counsel.

B. Sentencing Guideline Amendment

Mr. Buggs next argues that, due to an intervening change in the Sentencing Guidelines after his direct appeal, ² the district court abused its discretion in failing to remand his case for resentencing. According to Mr. Buggs, the district court should not have included in the sentencing calculation the four ounces of heroin that he negotiated to deliver but did not actually produce. ³

A certificate of appealability is not permitted unless the applicant makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Even before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, we held that errors in the implementation of the Sentencing Guidelines are generally not cognizable in a collateral attack. Scott v. United States, 997 F.2d 340, 341-43 (7th Cir.1993); see also United States v. Segler, 37 F.3d 1131, 1134 (5th Cir.1994) ("A district court's technical application of the Guidelines does not give rise to a constitutional issue cognizable under § 2255."). Here, Mr. Buggs argues that a subsequent amendment to the guidelines after his direct appeal makes the inclusion of the negotiated amount of heroin improper. This argument raises no constitutional issue; the issuance of a certificate of appealability was therefore inappropriate.

C. Conviction Under 18 U.S.C. § 924(c)

Lastly, Mr. Buggs asserts that the district court erred in not vacating his conviction for using or carrying a firearm. See 18 U.S.C. § 924(c). He relies upon the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that "use" under § 924(c) requires active employment). Mr. Buggs correctly notes that the jury instruction in his case was inconsistent with the Supreme Court's interpretation of "use" in Bailey. In essence, he argues that he was convicted of an act that does not constitute a crime. Because the district court did not list this issue in its grant of a certificate of appealability, we must construe Mr. Buggs' inclusion of this argument in his appellate brief as an implicit request for a certificate of appealability on this issue. See Williams v. Parke, 133 F.3d 971, 975 (7th Cir.1997).

We have stated that a Bailey claim raises merely a statutory, rather than a constitutional issue, and thereby implied that a certificate of appealability is inappropriate for any claims based on Bailey. See Young v. United States, 124 F.3d 794, 798-99 (7th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 2324, 141 L.Ed.2d 698 (1998); Nunez v. United States, 96 F.3d 990, 991 (7th Cir.1996). The...