                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-3045
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Southern District of Iowa.
Gregory Joseph Halter,                *
                                      *
            Defendant-Appellant.      *
                                 ___________

                             Submitted: March 17, 2000

                                  Filed: July 3, 2000
                                   ___________

Before RICHARD S. ARNOLD, LAY, and BEAM, Circuit Judges.
                           ___________


LAY, Circuit Judge.


       Gregory Joseph Halter (Halter) challenges the district court’s denial of his
petition for habeas relief under 28 U.S.C. § 2255 and the denial of his Motion for a
New Trial and Motion to Alter or Amend. Because we find error in the district court’s
characterization of dismissed charges as “more serious” than Halter’s charge under 18
U.S.C. § 924(c)(1), we vacate and remand for resentencing.
       This case involves a constitutionally defective guilty plea to a pre-Bailey1 charge
of using and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1). This case arises in the wake of the Supreme Court’s recent decision in
Bousley v. United States, 523 U.S. 614 (1998). In Bousley, the Court stated that a
defendant seeking to set aside a guilty plea under Bailey must show actual innocence
of any and all “more serious charges” foregone by the government in the course of plea
bargaining. Bousley, 523 U.S. at 624. The question presented here is whether Halter
must show his actual innocence of three dismissed distribution charges before he can
overcome his procedural default in failing to appeal the validity of his guilty plea.

       On February 14, 1992, Halter pleaded guilty to Counts One, Five, and Six of a
six-count indictment. Count One charged conspiracy under 21 U.S.C. § 846 relating
to drug trafficking in violation of 21 U.S.C. § 841(a)(1); Count Six charged money
laundering under 18 U.S.C. § 1956(a)(1)(A)(i); and Count Five was a charge under 18
U.S.C. § 924(c)(1) for using and carrying a firearm during the drug offense. As a result
of the plea bargain, the court dismissed Counts Two, Three, and Four, which were
charges under 21 U.S.C. § 841(a)(1) relating to the distribution of cocaine on three
separate occasions. The district court grouped Counts One and Six according to United
States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 3D1.2(c) and § 3D1.3(a).2
Because Count One’s Base Offense Level was greater than that of Count Six (34 versus
26), Count One was the dominant count from which the district court calculated the
total sentence. See U.S. SENTENCING GUIDELINES MANUAL § 3D1.3(a) (1992).
Working from a Base Offense Level of 34, the district court assigned Halter four
criminal history points (placing him in Criminal History Category III), a four-level
increase for his role in the offense, and a two-level reduction for acceptance of

      1
          Bailey v. United States, 516 U.S. 137 (1995).
      2
       The Pre-Sentence Report states that the applicable grouping Guideline for the
conspiracy and money laundering counts is § 3D1.2(d). Actually, the proper grouping
Guideline is § 3D1.2(c).

                                           -2-
responsibility. Consequently, Halter had a total offense level of 36, resulting in a
sentencing range between 235 and 293 months for the guilty pleas on Counts One and
Six, plus the mandatory sixty consecutive months for Count Five. Upon the
government’s motion, the defendant was given a reduction in sentence by 33a percent
for substantial assistance and thereafter was sentenced to 197 months imprisonment for
the three counts.

       Halter brought a motion under 28 U.S.C. § 2255 to set aside his § 924(c)
mandatory sentence under Bousley. On May 14, 1999, the district court denied the
motion. Noting that the plea transcript revealed that neither the defendant nor the court
correctly understood the essential elements of § 924(c) at the time of the plea, the
district court found Halter had only possessed the firearms as opposed to using or
carrying them. Thus, the court found the plea of guilty to the § 924(c) charge was
constitutionally invalid. Due to Halter’s procedural default, however, the court could
not set aside the § 924(c) plea without Halter first demonstrating his actual innocence
on the dismissed drug trafficking charges, if those charges were more serious than the
§ 924(c) charge. Recognizing that the dismissed charges provided for a maximum
statutory punishment of twenty years, see 21 U.S.C. § 841(b)(1)(C), the district court
found the dismissed charges were more serious than the § 924(c) charge, which carries
a mandatory statutory penalty of only five years. Thus, the district court denied
Halter’s petition because Halter could not show he was actually innocent of the “more
serious” dismissed distribution charges.

       On July 2, 1999, the district court entertained Halter’s Motion for New Trial and
Motion to Alter or Amend his judgment of conviction. Halter argued that the dismissed
charges could not be “more serious,” since the addition of those counts would have no
effect on his sentence because the amount of drugs involved in the dismissed counts
was already contemplated in establishing his Guideline range on Count One. The court
noted that Halter’s approach was “arguably a reasonable [one],” but rejected it
nonetheless. (Ruling Denying Motion for New Trial and Motion to Alter or Amend at

                                          -3-
1-2 (July 2, 1999).) The court reiterated that “the correct measure of the seriousness
of a crime charged is the maximum punishment prescribed for that crime.” (Id. at 2.)

       We cannot agree with the analysis of the district court. We are of the opinion
that actual punishment as determined by the Guidelines is the proper basis for
identifying the “more serious charge.” Although Congress sets the maximum penalty
for the violation of criminal statutes, it has also adopted the Guidelines as the proper
sentencing procedure to be followed by all federal courts in determining actual
punishment for federal crimes. See Stinson v. United States, 508 U.S. 36, 42 (1993)
(“As we have observed, ‘the Guidelines bind judges and courts in the exercise of their
uncontested responsibility to pass sentence in criminal cases.’” (quoting Mistretta v.
United States, 488 U.S. 361, 391 (1989))). See also United States v. Douglas, 64 F.3d
450, 452 (8th Cir. 1995) (applying the binding nature of Guidelines to Guidelines
amendments). As such, we are persuaded by the Third Circuit’s reasoning in United
States v. Lloyd, 188 F.3d 184 (3d Cir. 1999). In Lloyd, the court was faced with the
issue of determining whether a dismissed felon in possession count qualified as “more
serious” under Bousley. The court found significance in the fact that § 924(c) carries
a mandatory consecutive term while the felon in possession charge carried a Guideline
range of 27 to 33 months. See Lloyd, 188 F.3d at 189. The Court observed:

              We reject as improper the comparison urged by the government of
      the general maximum allowable penalty for [section 922] to the
      mandatory penalty for [section 924]. Rather, it is the actual penalty
      prospectively assessed this defendant for each Count--determined in
      accordance with the refining criteria of the United States Sentencing
      Guidelines and set forth in the government’s Presentencing Report--that
      is relevant to our comparison of the seriousness of the respective charges
      at the time of the plea bargain.

Id. at 189 n.13 (emphasis added).




                                          -4-
       We recognize that the statutory maximum serves to limit the actual sentence
imposed under the Guidelines where the latter might produce a Base Offense Level
resulting in a range that exceeds the maximum provided in the statute. It is not
sensible, however, to apply an abstract statutory maximum punishment when the
application of the Guidelines to the same conduct leads to a period of imprisonment
much shorter than the five-year mandatory sentence under § 924(c). Therefore, we
agree with the Third Circuit that the actual punishment, as opposed to the statutory
maximum, is the relevant factor in comparing the seriousness of the charges.

       In light of this, § 924(c) is obviously the more serious charge despite the
statutory maximum of the dismissed charges. The three dismissed charges involved the
distribution of 49.61 grams of cocaine on one occasion and 61.7 grams of cocaine on
the other two occasions. Standing alone, these offenses carry Base Offense Levels of
fourteen and sixteen, respectively.3 The Guidelines direct the district court to group all
related counts, however. Had Counts Two, Three and Four not been dismissed, they
would have been grouped under U.S.S.G. § 3D1.2(c) and § 3D1.3(a), along with
Counts One and Six.4

      Upon grouping, the sentences imposed for each grouped count run concurrently,
as was the case with Counts One and Six. Had the dismissed charges been successfully
prosecuted and grouped with Counts One and Six, they too would have resulted in



      3
        If these were the only charges successfully brought against Halter, they would
be grouped under U.S.S.G. § 3D1.2(d), and the maximum sentence would be controlled
by the aggregate quantity of drugs. See SENTENCING GUIDELINES MANUAL § 3D1.3(b)
(1998). In this case, the aggregate quantity would be 173.01 grams, resulting in a Base
Offense Level of 18.
      4
        Because they were dismissed, Counts Two through Four were only included as
part of Halter’s relevant conduct, and their attendant drug quantities comprised part of
the total amount of drugs included in the conspiracy charge.

                                           -5-
concurrent sentences. Since the Base Offense Levels for Counts Two through Four
range from 14 to 16, Count One, with its Base Offense Level of 34, would remain the
dominant charge for sentencing purposes. As a result, the overall calculation would
have remained unchanged. Consequently, the distribution counts, even if not
dismissed, would have less impact upon the defendant’s overall punishment than the
five-year mandatory consecutive sentence under § 924(c). Thus, the distribution
charges are less serious.

       The Guidelines themselves help us discern the relevant factors in determining the
“more serious” offense. The Guidelines state that where multiple counts involving
substantially the same harm are involved, “the most serious of the counts compris[es]
the Group.” SENTENCING GUIDELINES MANUAL § 3D1.3(a) (1998). “Most serious”
is then defined as “the highest offense level of the counts in the Group.” Id. Thus, the
Guidelines themselves specifically refer to the “most serious” count as being the one
with the higher offense level. We choose to adopt this understanding of the phrase
“more serious” for the purpose of applying Bousley.

       On this basis, this court finds that the district court’s opinion should be vacated
and the case remanded to the district court for resentencing. The constitutional
invalidity of the § 924(c) count requires the district court to set aside Count Five. To
overcome his procedural default, Halter need not show actual innocence of the
dismissed charges since they are, on their face, less serious than the § 924(c) count.5


       5
         On remand, in imposing sentence using its previous Base Offense Level, the
district court is at liberty to consider whether there are any other relevant factors within
the factual circumstances of the offenses and the plea involved. Although Halter is not
guilty of carrying or using a firearm under § 924(c), the court might still find that he
possessed a firearm during the drug trafficking offenses. This may be a factor for the
court to consider under the Guidelines in rendering the actual sentence to be given. See
SENTENCING GUIDELINES MANUAL § 2D1.1(b)(1) (1998); United States v. Turpin, 920
F.2d 1377, 1386-87 (8th Cir. 1990).

                                            -6-
BEAM, Circuit Judge, concurring and dissenting.

      I respectfully suggest the court incorrectly uses the Sentencing Guidelines to
determine which count was "more serious." Accordingly, I concur in the result reached
by the court but disagree with its reasoning.

        The Supreme Court stated in Bousley v. United States, 523 U.S. 614 (1998), that
if the Government decided to forego "more serious charges" in a plea bargain involving
a Bailey claim, then the petitioner must show he is actually innocent of those charges.
Id. at 624. In this case, the petitioner cannot show he is innocent of the foregone
charges. Therefore, the only issue for this court is whether those charges were more
serious than the gun charge. The Supreme Court, however, provided little guidance
on how to decide the issue.

       The criminal statutes and the Sentencing Guidelines are the two most logical
sources to look to for guidance. Both present Congress' view of a crime's severity
through the type and length of punishment imposed. Given these two guideposts, the
district court chose to use the statutory maximum punishment to determine the
seriousness of a charge. This court now reverses the district court and holds the
distinctions should be made by looking at the Sentencing Guidelines.

       I disagree with both approaches. This court clearly looks to the wrong source
in the guidelines. The district court looked at the right source, but only at one part of
it—the statutory maximum. I contend the best approach is to look at both the statutory
minimum and the statutory maximum to determine which charge is more serious.

       When forced to choose between the Sentencing Guidelines and criminal statutes
to determine Congress' true intent, the Supreme Court and this court have consistently
held that statutes trump the guidelines. See United States v. LaBonte, 520 U.S. 751
(1997) (discussing career offender determinations); Neal v. United States, 516 U.S. 284

                                          -7-
(1996) (discussing drug quantity measures for LSD); United States v. Fountain, 83 F.3d
946 (8th Cir. 1996) (career offender); United States v. Stoneking, 60 F.3d 399 (8th Cir.
1995) (LSD). We have stated that "[i]n general, when a statute and a guideline
conflict, the statute controls." Stoneking, 60 F.3d at 402.

        Statutes are Congress' clearest statement of intent because they provide a fixed
range of punishment for the charge alone, without consideration of any other factors.
Thus, in every criminal case, the criminal statute is essentially the starting point for any
sentencing analysis. On the other hand, the Sentencing Guidelines are "'essentially a
system of finely calibrated sentences'" that account for many factors in addition to the
charge. Neal, 516 U.S. at 292 (quoting United States Sentencing Commission, Special
Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice
System iii (Aug. 1991)). For example, the guidelines provide for grouping of charges
for sentencing and adjustments of a sentence for "acceptance of responsibility,"
"substantial assistance," "more than minimal planning," "vulnerable victim" and many
other similar factors. The Sentencing Guidelines create steadily increasing penalties
based on appropriate factors, while the mandatory sentences of the statutes result in
"cliffs." See id. Because they are so clear-cut, it is those "cliffs" that show in dramatic
terms the severity of a crime and that provide courts with the most guidance in
determining which crime is more serious.

       The folly of using the Sentencing Guidelines to compare the relative seriousness
of different offenses is graphically laid out in this case. The district court gave Halter
a two-level reduction for acceptance of responsibility, and reduced his sentence by one-
third for substantial assistance. These two sentence reductions may not have been
granted if not for the mistaken assumption that Halter would have to serve sixty-
months' imprisonment for a gun charge in addition to any other sentence he was given.
It is difficult now for any court to go back and re-create the strategy the government
would have pursued at sentencing without the gun charge. Additionally, it is hard to
retrace the steps the district court would have taken under the Sentencing Guidelines

                                            -8-
to arrive at a fair sentence without the gun charge. Therefore, the use of the Sentencing
Guidelines is fraught with many more complications than the Supreme Court could
have possibly anticipated when it held that a petitioner's showing of actual innocence
needed to extend to the more serious charges.

      Although the approach of using the criminal statutes to determine which charge
is more serious also has imperfections, these imperfections are fewer than those
presented by the guidelines. In most cases, Congress will have set forth a clear
minimum and a clear maximum. If both the statutory minimum and the maximum for
a given charge are higher than the five years required for the gun charge, then the
charge is more serious. If the minimum and maximum are both less than for the gun
charge, then the gun charge is more serious. It is only in those cases where the
maximum is higher and the minimum is lower, that the determination becomes more
complex.

       This, unfortunately, is one of those cases. Halter was charged with a violation
of 18 U.S.C. § 924(c)(1), for the use or carrying of a firearm during a drug offense.
This charge carries a sentence of five years. He was also charged with three counts of
drug distribution in violation of 21 U.S.C. § 841(a)(1). Each of those charges carries
a maximum sentence of "not more than twenty years," but no minimum sentence is
given. Thus, we are faced with the situation where the minimum could be lower than
that of the gun charge, and a maximum that is higher. In this situation, the rule of lenity
should be applied.

       The rule of lenity prevents a court from interpreting a criminal statute to increase
the penalty the statute places on an individual when such an interpretation is based on
no more than a guess about Congress' intentions. See United States v. Lazaro-
Guadarrama, 71 F.3d 1419, 1421 (8th Cir. 1995). Accordingly, the rule of lenity
allows courts to resolve doubts about the ambiguity of which charge is more serious in
favor of a petitioner. See United States v. Warren, 149 F.3d 825, 828 (8th Cir. 1998).

                                           -9-
Thus, because the drug distribution charges carry lower minimum sentences than the
gun charge, the gun charge is the "more serious charge." As a result, Halter's
procedural default is excused.

       This conclusion does not end in sentencing certainty. The section 924(c) gun
charges precluded the district court from considering the possible use or possession of
a firearm in its initial sentencing calculus. With the vacation of that charge, the court
may now do so. Accordingly, I would also reverse the district court and remand the
case for resentencing but in a manner consistent with this concurrence and dissent.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -10-
