U.S. v. Segler

• Decision Date: 14 November 1994
• Docket Number: No. 93-8786,93-8786
• Citation: 37 F.3d 1131
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe Clinton SEGLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1131

37 F.3d 1131

UNITED STATES of America, Plaintiff-Appellee, v. Joe Clinton SEGLER, Defendant-Appellant.

No. 93-8786.

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Nov. 14, 1994.

Joe Clinton Segler, pro se.

Richard L. Durbin, Jr., Ronald J. Sievert, Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Joe Clinton Segler pled guilty to manufacturing methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1) (1988), and to being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). Segler was sentenced to a 300-month term of imprisonment and fined $30,000. On direct appeal, we upheld Segler's conviction and sentence in an unpublished opinion. United States v. Segler, No. 89-1588, 896 F.2d 550 (Table) (5th Cir. Jan. 31, 1990). Segler, proceeding pro se, now appeals an order of the district court denying his motion pursuant to 28 U.S.C. Sec. 2255 to vacate, set aside, or correct his sentence. We affirm.

I

"Relief under 28 U.S.C. Sec. 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992). Moreover, a defendant "may not raise an issue [constitutional or jurisdictional in nature] for the first time on collateral review without showing both 'cause' for his procedural default, and 'actual prejudice' resulting from the error." United States v. Shaid, 937 F.2d 228, 232 (5th Cir.1991) (en banc) (citation omitted), cert. denied, --- U.S. ----, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). "If the error is not of constitutional or jurisdictional magnitude, the defendant must show the error would result in a complete miscarriage of justice." Id. at 232 n. 7.

II

A

Segler first contends the district court erred in sentencing him for manufacturing a Schedule II controlled substance because methamphetamine was not properly transferred under 21 U.S.C. Sec. 811 from a Schedule III to a Schedule II controlled substance. ¹ Assuming arguendo that this is an issue of sufficient constitutional magnitude to warrant raising on collateral attack, we previously have held that the transfer of methamphetamine from Schedule III to Schedule II satisfied the requirements of Sec. 811. See United States v. Branch, 980 F.2d 1445 (5th Cir.1992); see also United States v. Greenwood, 974 F.2d 1449, 1472 (5th Cir.1992) ("Since the early 1970s, as a matter of law, methamphetamine has been classified as a schedule II controlled substance."); United States v. Allison, 953 F.2d 870 (5th Cir.) (holding rescheduling of methamphetamine from Schedule III to Schedule II had been properly accomplished), cert. denied, --- U.S. ----, 112 S.Ct. 2319, 119 L.Ed.2d 238 (1992). Consequently, we reject Segler's first claim of error.

B

Segler next contends that the district court misapplied the Sentencing Guidelines in sentencing him as a career offender. ² A district court's technical application of the Guidelines does not give rise to a constitutional issue cognizable under Sec. 2255. Vaughn, 955 F.2d at 368. Applying the Sec. 4B1.1 criteria to determine whether to sentence as a career offender does not implicate any constitutional issues. United States v. Faubion, 19 F.3d 226, 233 (5th Cir.1994). Moreover, this claim could have been raised on direct appeal. See Vaughn, 955 F.2d at 368 (a nonconstitutional claim that could have been raised on direct appeal, but was not, may not be raised in a collateral proceeding). Accordingly, Segler is not entitled to Sec. 2255 relief.

C

Segler next alleges that the district court erred in calculating his base offense level by including the entire 8.5 gallons of acetone seized by police officers. ³ We considered, and rejected, this issue on direct appeal. See Segler, slip op. at 4-5. Therefore, we need not reconsider this argument on Sec. 2255 review. United States v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986).

Segler also argues that we should reduce his sentence because a recent amendment to the Sentencing Guidelines makes clear that the district court should not have calculated his base offense level using the entire quantity of acetone. ⁴ Segler contends that Amendment 484 was to be retroactively applied and, consequently, the sentence imposed was illegal. See U.S.S.G. Sec. 1B1.10(d) (noting that amendment 484 is to be applied retroactively). However, under the law in effect at the time of sentencing, the district court correctly included the total weight of the solution seized in determining Segler's base offense level. See United States v. Sherrod, 964 F.2d 1501, 1509 (5th Cir.1992); Baker, 883 F.2d at 15. Moreover, this very claim was rejected on appeal. Segler, slip op. at 4-5. Because reconsidering an issue raised on direct appeal is beyond the narrow scope of Sec. 2255 review, Kalish, 780 F.2d at 508, we decline to consider the merits here. We note, however, that Segler is not barred from raising the issue in a motion pursuant to 18 U.S.C. Sec. 3582(c)(2). ⁵ See U.S.S.G. Sec. 1B1.10; United States v. Towe, 26 F.3d 614, 616 (5th Cir.1994) (holding that a defendant may seek a reduction under Sec. 3582(c) where the applicable guideline range has been lowered as a result of a retroactive amendment).

D

Segler claims that the district court incorrectly adjusted his base offense level upward two points for possessing a firearm while manufacturing methamphetamine. ⁶ He argues that this upward adjustment, when combined with the sentence he received for being a felon in possession of a firearm, constitutes double jeopardy. He also argues that the district court erred in not grouping the methamphetamine and firearms counts as "related conduct offenses" pursuant to Sec. 3D1.1. ⁷ Assuming arguendo that these claims are cognizable on collateral review, we find both to be without merit.

Segler's double jeopardy argument " 'misperceives the distinction between a sentence and a sentence enhancement.' " United States v. Ainsworth, 932 F.2d 358, 363 (5th Cir.) (quoting United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989)), cert. denied, --- U.S. ----, 112 S.Ct. 346, 116 L.Ed.2d 286 (1991). The danger of violence increases when firearms are present during drug-related crimes. Sentence enhancement for firearms possession seeks to discourage drug traffickers from possessing firearms. U.S.S.G. Sec. 2D1.1, comment. (n. 3). The record reflects that loaded firearms were found at Segler's residence, where the drug laboratory was located. Because Segler does not claim that the firearms at issue were not connected to the offense, the district court did not err by increasing Segler's offense level after finding that he possessed the firearms during the commission of a drug offense. U.S.S.G. Sec. 2D1.1(b)(1); see also United States v. Hewin, 877 F.2d 3, 5 (5th Cir.1989) (noting that the offense level should be increased 'unless it is clearly improbable that the weapon was connected with the offense') (citation omitted). Accordingly, there was no violation of Segler's double jeopardy rights. Ainsworth, 932 F.2d at 363.

Likewise, there is no merit to Segler's claim that the district court failed to "group" the two counts for sentencing under Sec. 3D1.1. Segler misunderstands the calculation of his sentence. The district court did group the counts, pursuant to Sec. 3D1.2(c). ⁸ However, because the resulting guideline range--360 months to life--was greater than the statutorily authorized maximum sentence for the methamphetamine count--240 months--the statutory maximum penalty controlled. See U.S.S.G. Sec. 5G1.1. Consequently, Sec. 5G1.2 required the district court to impose consecutive sentences for the methamphetamine count and the firearm count. ⁹ As Segler recognized, the district court imposed the statutory maximum penalty of 60 months for the unlawful possession of a firearm in an attempt to impose a sentence within the guideline range. Therefore, the district court accurately applied the guidelines with respect to sentencing for "closely related" counts.

E

Segler also alleges that the district court erred in imposing a $30,000 fine without making specific findings regarding his ability to pay. The "propriety of a fine is a matter relative to sentencing and should have been raised on direct appeal and not for the first time in a Sec. 2255 proceeding." United States v. Davis, No. 93-8131, slip op. at 1-2, 8 F.3d 23 (Table) (5th Cir. October 29, 1993). Moreover, even assuming arguendo that his challenge comes under Sec. 2255, ¹⁰ his claim lacks merit. While Segler correctly identifies the various factors to be considered, see 18 U.S.C. Sec. 3572(a) and U.S.S.G. Sec. 5E1.2, the district court need not make express findings regarding these factors. United States v. Matovsky, 935 F.2d 719, 722 (5th Cir.1991) ("[T]he guidelines set forth no requirement that the district court make express findings [demonstrating consideration of the factors in Sec. 5E1.2], and we decline to create one.").

F

Lastly, Segler alleges ineffective assistance of counsel. Segler specifically contends that he received ineffective assistance during sentencing and on direct appeal because counsel failed to challenge: (1) the district court's categorization of him as a career offender; (2) the two point enhancement for weapons possession pursuant to U.S.S.G. Sec. 2D1.1(b)(1); and (3) the imposition of the $30,000 fine.

A claim that counsel has rendered ineffective assistance will succeed only if the defendant proves that such counsel was not only objectively deficient, but also that the defendant was thereby prejudiced....