
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1222                                                FRANK A. BUCO,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Frank A. Buco on brief pro se.               _____________               A. John Pappalardo,  United States Attorney, Wendy  Warring,               __________________                           ______________          Trial Attorney,  U.S. Department  of  Justice, New  England  Bank          Fraud  Task Force, and Margaret R.  Hinkle, Director, New England                                 ___________________          Bank Fraud Task Force, on brief for appellee.                                  __________________                                    June 10, 1993                                  __________________                 Per Curiam.  On  this appeal from the denial of a motion                 __________            under  28 U.S.C.   2255  filed by petitioner  Frank Buco, the            government has  conceded that an error,  unnoticed by anyone,            was made in the calculation of the sentencing guideline range            when petitioner was originally sentenced.  Buco was convicted            of  bank fraud  and  related offenses  and,  at the  time  of            sentencing in 1991, a total offense level of 19 was computed,            including a 3-point upward adjustment for an aggravating role            and  a 2-point upward adjustment  for abuse of  a position of            trust.  U.S.S.G.    3B.1.1(b),  3B1.3 (1990).   Buco did  not            appeal the sentence.                 Although  the  guidelines  in  effect  at  the  time  of            sentencing  permitted  both  adjustments, the  guidelines  in            effect at the time of the offenses (which apparently ended in            1989) did not.  Compare U.S.S.G.   3B1.3 (1989) with U.S.S.G.                            _______                         ____              3B1.3 (1990) (as amended by Amendment 346).  The government            concedes that the  2-point upward adjustment  for abuse of  a            position of trust was impermissible  under the Ex Post  Facto            Clause.   See Miller v. Florida, 482 U.S. 423, 429-35 (1987).                      ___ ______    _______            But  it  also  contends  that  the  issue  was  not  properly            preserved and that, in any event, Buco was not prejudiced.                 The guideline  range computed at the  time of sentencing            was   30-37  months,   but   departing   downward   (somewhat            reluctantly) to reflect Buco's cooperation  with authorities,            the district court imposed a 27-month sentence.   The correct            guideline range, based on the government's concession, is 24-            30 months.  The government argues that  the 27-month sentence            was the  minimum the district  court deemed appropriate.   In            rejecting the government's suggestion of a departure down  to            21 months, the district  court stated that it would  not drop            below  27 months  because of  Buco's greater  involvement and            culpability in  comparison to his  codefendants who  received            sentences  of  up  to 24  months.    Buco  contends that  the            district court,  utilizing the correct guideline range, would            have  imposed  a  21-month  sentence  (the  proper  guideline            minimum less three months for cooperation).                   Under  United  States v.  Frady,  456  U.S. 152,  164-68                        ______________     _____            (1982),  a procedurally  defaulted  habeas claim  may not  be            reviewed on the merits  unless the petitioner can  show cause            for  the default as well as actual prejudice from the alleged            violation.   An  exception  to Frady's  cause plus  prejudice                                           _____            requirement exists where failure to consider the claim on the            merits would result in  a fundamental miscarriage of justice.            Coleman  v. Thompson,  111 S.Ct.  2546, 2564  (1991).    Buco            _______     ________            contends that  the probation officer's error  in applying the            amended  guidelines  in  Buco's  presentence  report  and the            prosecutor's failure  to identify  the  error are  sufficient            cause for his procedural default.  We do not agree.                 In  order  to establish  "cause"  for  the default,  the            petitioner must show that  some "objective factor external to            the defense  impeded   [defense] counsel's efforts  to comply            with .  . . the procedural rule."  Murray v. Carrier, 477 U.S                                               ______    _______            478,  488 (1986).  Here  the legal error  was discoverable at            the  time of  sentencing, and  the failure  of  the probation                                         -3-            officer  and  prosecutor to  discover  the  mistake does  not            excuse defense counsel's own inadvertence any more than would            a trial  court's failure to  recognize error in  its rulings.            There   was  no  external  impediment  to  defense  counsel's            compliance  with   the  rule  requiring  that  objections  to            guideline computations be made at or before sentencing.   The            lawyer  either  neglected  to read  the  pertinent  guideline            provisions  or else did so but missed the significance of the            limitation in the pre-1990 version of the guidelines.                 It also appears unlikely that the prejudice  requirement            could be  met.    "To  show  `prejudice,'  a  defendant  must            demonstrate  `a  reasonable  probability that,  but  for [the            alleged]  erro[r], the  result of  the proceeding  would have            been different.'"   Sawyer v.  Whitley, 112 S.Ct.  2514, 2532                                ______     _______            (1992) (concurring  opinion of  Mr. Justice Blackmun).   From            the remarks made  at sentencing, it seems  to us at  least as            likely that the present sentence would have been imposed even            if  the correct guideline range had been used as the starting            point.    However, this  issue need  not be  resolved because            unless  both cause  and prejudice  are shown,  the procedural            default  bars the  petition unless  a miscarriage  of justice            would result.  United  States v. Ortiz, 966 F.2d  707, 717-18                           ______________    _____            (1st Cir.  1992), relied upon by  petitioner, involved direct            appeal where the preconditions to habeas relief do not apply.                                         -4-                                         -4-                 The contours of the "miscarriage of justice" concept are            not precisely delimited, and different standards may apply in            different  contexts.    See  United  States  v.  Orlando,  61                                    ___  ______________      _______            U.S.L.W. 4421,  4424 (1993).  But the  Supreme Court's recent            collateral review  jurisprudence shows  that when a  sentence            falls  within  the  correct  guideline  range,  there  is  no            miscarriage of justice even though it is possible that absent            a mistake the sentencing court might have imposed a different            sentence.  Sawyer,  112 S.  Ct. at 2518-23.   Without  laying                       ______            down  a blanket rule, we do not think that this case presents            a miscarriage of justice--a  standard more stringent than the            prejudice requirement--and we  therefore affirm the dismissal                                                     ______            of the petition.                 It is so ordered.                 ________________                                         -5-                                         -5-
