          United States Court of Appeals
                     For the First Circuit


No. 00-2479

                       RANDALL J. COFSKE,

                     Petitioner, Appellant,

                               v.

                   UNITED STATES OF AMERICA,

                     Respondent, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

                      Boudin, Chief Judge,

                 Bownes, Senior Circuit Judge,

                   and Lipez, Circuit Judge.


     Robert J. Bray for petitioner.
     Randall J. Cofske on Motion for Emergency Hearing pro se.
     Donald L. Cabell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
respondent.




                          May 13, 2002
          BOUDIN, Chief Judge.     Randall Cofske appeals from the

district court's denial of his motion under 28 U.S.C. § 2255 to vacate,

set aside, or correct his sentence. In substance, Cofske claims that

his trial counsel and appellate counsel were ineffective in failing to

object to the calculation of his sentence under the Sentencing

Guidelines. Specifically, he argues that when he committed the federal

offense for which he was being sentenced--possession of stolen firearms

in violation of 18 U.S.C. § 922(j) (1994)--he did not have the "prior

conviction" that was used to increase his base offense level ("BOL")

under U.S.S.G. § 2K2.1 (a)(4) (1995).

          Cofske committed the federal offense in 1992, but we start

with the earlier state offense that lies at the heart of his present

appeal. On October 20, 1989, Cofske was charged in the Ware District

Court in Massachusetts with breaking and entering in the daytime with

the intent to commit a felony. Under the two-tier trial system then

used by Massachusetts, Cofske waived his right to a jury trial and

instead elected a bench trial in the Ware District Court (the first

tier).1 On August 17, 1990, the judge found Cofske guilty of the charge


     1
     As explained in United States v. Morillo, 178 F.3d 18, 21-
22 n.5 (1st Cir. 1999):

          Under this 'two-tier' system, a defendant was
          entitled to a six person jury trial at the 'first
          tier.' The defendant could waive this right and

                                 -2-
and sentenced him to 60 days in prison. Cofske then appealed, seeking

a trial de novo (the second tier) before a jury of six; under

Massachusetts law this appeal vacated the initial conviction. Wilson

v. Honeywell, Inc., 569 N.E.2d 1011, 1015 (Mass. 1991).          He was

convicted again by a jury in the Northampton District Court on January

23, 1993.

            After Cofske's conviction and appeal in Ware, but before his

conviction in Northampton, Cofske committed the federal firearms

offense. On or about October 27, 1992, Cofske and two other men broke

into a Salem, Virginia, residence and stole about ten handguns. Using

Cofske's car, they then transported the guns to Massachusetts where

they were later sold. The grand jury indicted Cofske on July 17, 1996,

for possession of stolen firearms in violation of 18 U.S.C. § 922(j)

and for transportation of stolen firearms in violation of 18 U.S.C. §

922(i).

            On March 3, 1997, pursuant to a written plea agreement,

Cofske pleaded guilty to the charge of possession of stolen firearms.

As part of that agreement the prosecution dismissed the transportation-


            elect a bench trial instead.      Defendants who
            elected a bench trial could appeal the outcome to
            the 'second tier.'   At this level, a defendant
            would receive a de novo jury trial unless he
            again elected a bench trial before a second
            judge.

In 1994, Massachusetts abolished the two-tier trial system in
the Commonwealth's district courts.

                                  -3-
of-stolen-weapons charge and agreed to recommend a single three-level

specific offense adjustment (based on the number of firearms involved)

offset by a three-level reduction for acceptance of responsibility;

Cofske in turn agreed (among other things) to take the position at

sentencing that his base offense level should be set at 20 pursuant to

U.S.S.G. § 2K2.1(a)(4)(a), which mandated a BOL of 20 for firearms

possession if "the defendant had one prior felony conviction of either

a crime of violence or a controlled substance offense."2

          The original presentence report ("PSR") listed Cofske's BOL

as 12, concluding that he had no such prior conviction. After the

government objected, the probation officer amended the PSR to include

the Massachusetts breaking and entering conviction already described

and increased his BOL to 20. Cofske's attorney urged in turn that the

breaking and entering charge did not become a conviction until January

23, 1993 (at the second tier), which was after the federal offense, and

therefore could not be counted as a prior conviction under U.S.S.G. §

2K2.1.   The probation officer responded that the 1990 first tier

conviction was the relevant prior conviction, and the PSR left the BOL

at 20.



     2
     References, unless otherwise indicated, are to the 1995
edition of the guidelines, as updated by a 1996 pamphlet. This
is the set of guidelines in effect at the time of Cofske's
sentencing in mid 1997.    The pertinent provision of section
2K2.1 as of mid 1997 is set forth in an addendum to this
opinion.

                                 -4-
            Cofske was sentenced on July 15, 1997.          At sentencing,

Cofske's attorney abandoned the argument that Cofske did not have a

prior    conviction   and   stated   that   the   revised   PSR   "took   up

acknowledgment of the government's objection which was quite correct

and part of my error at the time. It starts out with a base level of

20 pursuant to 2K2.1(a)(4)." The district court then adopted the

calculations of the revised PSR, which included the breaking and

entering conviction in both Cofske's criminal history category ("CHC")

calculation under section 4A1.1, and his BOL under section 2K2.1.

            The court determined that Cofske's BOL was 20, his adjusted

offense level was 24,3 and his CHC was V; the applicable guideline

sentence range was 92 to 115 months. After denying Cofske's motion for

a downward departure, the district court sentenced Cofske to 92 months

in prison. Cofske appealed--not raising the issue he raises here--and

this court affirmed both his conviction and sentence. United States v.

Cofske, 157 F.3d 1 (1st Cir. 1998), cert. denied, 526 U.S. 1059 (1999).




     3
     The court imposed a three-level upward adjustment under §
2K2.1(b)(1)(C) because the offense involved between 8 and 12
firearms, and a four-level upward adjustment under § 2K2.1(b)(5)
because Cofske possessed the firearms in connection with a
felony offense or transferred them with reason to believe they
would be used in another felony offense.     The district court
then applied a three-level reduction for acceptance of
responsibility, thereby setting Cofske's adjusted offense level
at 24. None of these adjustments is now challenged.

                                     -5-
          Cofske then filed a motion under 28 U.S.C. § 2255 asserting

that, at the time of his federal firearms offense, he had not been

convicted of the breaking and entering offense because his 1990 first-

tier conviction in the Ware District Court had been nullified by his

appeal seeking a second-tier de novo jury trial. He further argued

that this conviction was impermissibly used to enhance his BOL and CHC,

and that his trial counsel and appellate counsel were ineffective for

failing to object to its inclusion in his sentence computation.

          On May 18, 2000, the district court denied Cofske's motion.

The court found that the 1990 first-tier conviction was the relevant

conviction for purposes of section 2K2.1(a)(4)(A) and that there was no

error in the calculation of Cofske's sentence; it determined that

Cofske was therefore not prejudiced by his counsel's actions, as

required by Strickland v. Washington, 466 U.S. 668 (1984), and found it

unnecessary to evaluate the reasonableness of Cofske's attorney's

decision not to object to the BOL calculation. The district court

later denied Cofske's requests for reconsideration of the decision.

          On February 8, 2001, Cofske applied for a certificate of

appealability, 28 U.S.C. § 2253(c)(1), solely to urge that his trial

and appellate counsel were ineffective in allowing his first-tier

conviction to increase his BOL. On April 20, 2001, the district court

denied his application, reaffirming its May 18, 2000, finding and also

holding (in the alternative) that the breaking and entering conviction


                                 -6-
counted as a "prior conviction" even if the correct date of conviction

were deemed January 1993. Cofske v. United States, 143 F. Supp. 2d 85

(D. Mass. 2001).

          On November 26, 2001, this court granted Cofske's certificate

of appealability and directed the parties to address the following two

questions:

          1. Under the Massachusetts two-tier trial court
          system in effect at the time of Cofske's
          conviction, what is the force and effect of a
          district court conviction once the defendant has
          appealed to a trial de novo?

          2.  Does the reference to a "prior felony
          conviction" in section 2K2.1(a)(4)(A) include
          post-offense convictions?

We also granted Cofske's request for expedited briefing, because on his

calculation, his proper sentence had already expired.

          Although the language of 28 U.S.C. § 2255 is quite general,

the Supreme Court has restricted collateral attack for claims that do

not allege constitutional or jurisdictional errors; such claims are

said to be cognizable only where the alleged error presents "a

fundamental defect which inherently results in a complete miscarriage

of justice" or "an omission inconsistent with the rudimentary demands

of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962).

Thus, a guideline violation alone is not automatically a basis for

relief under 28 U.S.C. § 2255. Knight v. United States, 37 F.3d 769,

772-73 (1st Cir. 1994).


                                 -7-
          However, if the claim is repackaged as one of ineffective

assistance of counsel, as Cofske's is here, it becomes a constitutional

claim. Not every error amounts to ineffectiveness. See Lema v. United

States, 987 F.2d 48, 51 (1st Cir. 1993). An ineffective assistance of

counsel claim will succeed only if the defendant--who bears the burden

on both points, Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir. 1994)--shows

(1) that counsel's performance fell below an objective standard of

reasonableness, and (2) that but for the error or errors, the outcome

would likely have been different, Strickland, 466 U.S. at 687.

          Since the absence of any error in sentencing would eliminate

any prejudice, and therefore Cofske's ineffectiveness claim, it is

useful to begin by considering the correctness of the BOL calculation.

At the time of Cofske's sentencing in July 1997, U.S.S.G. §

2K2.1(a)(4)(A) stated that a defendant's BOL for the firearms

conviction should be set at 20 if the defendant "had one prior felony

conviction of either a crime of violence or a controlled substance

offense[.]" However, neither the guideline language nor the commentary

answered the question, "prior to what?"

          Certainly the guideline would be satisfied if the "prior

conviction" occurred before the federal crime itself was committed.

But on this reading, we would have to count the Ware District Court

conviction as a prior conviction, even though it had been vacated as a




                                 -8-
result of Cofske's filing an appeal for a second tier trial, months

before Cofske committed the federal offense.

          Whether such a vacated conviction still "counts" for

guideline purposes is a matter of federal rather than state law. See

United States v. Mateo, 271 F.3d 11, 15 (1st Cir. 2001). Looking only

at guideline language, one could argue the matter both ways. Before he

committed the federal crime, Cofske "had one prior felony conviction"

of the required class; but before he committed the federal crime, that

conviction had been nullified under state law by his appeal from the

first tier to the second. The commentary was understandably silent on

how to treat this oddity of Massachusetts procedure.

          There are policy arguments both ways. If the issue were

pursued in depth, we might want to know more about the reasons for the

two-tier regime and, equally important, whether it led lawyers to use

the first tier merely as a discovery device or an effort to secure

probation or a light sentence. Cf. United States v. Roberts, 39 F.3d

10, 12-13 (1st Cir. 1994). And, of course, whether the first tier

conviction followed a full defense might vary from case to case. If in

general a full defense were offered, federal law might well disregard

the state's penchant to offer the defendant a second bite at the apple.

          In all events, the government has chosen here not to argue

that the Ware District Court conviction should count. The concession

has arguments in its favor and the opposing arguments are debatable and


                                 -9-
have not been briefed.    For purposes of this case, we accept the

concession, which turns out not to affect the outcome here. Given the

repeal of the two-tier system, it is not clear that the issue will even

arise again so it certainly does not cry out for a definitive

resolution.

          This brings us to the district court's alternative ground for

concluding that the prior conviction should count, namely, that even if

the Northampton District Court conviction is controlling, it occurred

"prior" to the federal sentencing, even though after the federal crime

itself. Neither the version of the section 2K2.1 guideline in force in

mid 1997 nor its commentary clearly answers the question whether the

conviction must be prior to the federal crime or only prior to the

sentencing for it.

          In fact, the clues to this puzzle--linguistic, policy and

analogical--point in both directions and, prior to a recent amendment

to the guideline described below, the circuits were divided. At the

time of the Cofske's federal sentencing, the circuits were split two to

one in the government's favor (i.e., that any conviction prior to

federal sentencing counted);4 at the time of the recent amendment, the



     4Compare United States v. Gooden, 116 F.3d 721, 724-25 (5th
Cir. 1997) and United States v. McCary, 14 F.3d 1502, 1506 (10th
Cir. 1994) (convictions occurring anytime before sentencing
count as prior felony convictions) with United States v. Barton,
100 F.3d 43, 45-46 (6th Cir. 1996) (post-offense convictions do
not count as prior felony convictions).

                                 -10-
government still held the edge with a four-to-three split.5 Obviously,

the issue was close and reasonable courts could disagree.

          Part of the problem is that the guidelines elsewhere contain

two different approaches to "prior"-ness. One, used in determining

prior criminal history under chapter 4A, looks to whether a prior

"sentence" occurred before the federal sentence. U.S.S.G. § 4A1.2,

application note 1. The other, used to establish whether the defendant

is a career offender under chapter 4B, counts prior "convictions" only

if they occurred before commission of the federal crime itself.

U.S.S.G. § 4B1.2(3). In its own context, each approach makes some

sense. United States v. Leviner, 31 F. Supp. 2d 23, 28-30 (D. Mass.

1998).

          The issue has now been resolved for the future in Cofske's

favor by a 2001 amendment to section 2K2.1 (reprinted in the addendum)

providing that a defendant's BOL should be increased to 20 where "the

defendant committed any part of instant offense subsequent to

sustaining one felony conviction of either a crime of violence or a

controlled substance offense."    U.S.S.G. § 2K2.1(a)(4)(A) (2001)

(emphasis added). The amendment's "reason for adoption" adopts "the



     5
     United States v. Laihben, 167 F.3d 1364, 1366 (11th Cir.
1999), and United States v. Pugh, 158 F.3d 1308, 1311 (D.C. Cir.
1998) followed the approach of the Fifth and Tenth Circuits,
while United States v. Oetken, 241 F.3d 1057, 1059 (8th Cir.
2001) and United States v. Pedragh, 225 F.3d 240, 245 (2d Cir.
2000), followed the approach of the Sixth Circuit.

                                -11-
minority view" and the chapter 4B analogy, Amendment 630, Nov. 1, 2001,

but it was not made retroactive to Cofske's case. U.S.S.G § 1B1.10

(2001).    One could as easily call it a revision as a clarification.

            Without regard to the amendment, we think that prior

convictions should count, for purposes of section 2K2.1 as it stood

when Cofske was sentenced, only if they occurred before the federal

crime.    This was the "minority" view in the circuits prior to the

recent guideline amendment, but it has in its favor a modest piece of

linguistic evidence, Pedragh, 225 F.3d at 245, a decent analogy to the

prior-felon "status" approach used in section 4B, Leviner, 31 F. Supp.

2d at 28-30, and a better claim to adoption by cross-reference in a

tangled set of cross references in 2K2.1's then-existing commentary.6

Both sides of the dispute can be traced through the cited cases, see

notes 4-5, above.

            Still, our current view of the merits hardly establishes that

Cofske's counsel was ineffective in 1997 in failing to press the

argument for a BOL of 12. The guideline's original wording is obscure

and a majority of circuits both before and after read the pre-amendment



     6
     Section 2K2.1, app. note 5, said that "prior felony
conviction(s)" is defined in "§4B1.2 . . . Application Note 1 of
the Commentary" which in turn shed no light on the question
before us but was at least a reference to chapter 4B rather than
4A; chapter 4B's approach, as noted in text, supports Cofske.
Confusingly, application note 5 and application note 1 also
contain cross-reference to chapter 4A, although arguably less in
point.

                                  -12-
guideline in favor of the prosecutor. If Cofske's counsel had simply

overlooked the argument, it is uncertain that this would have counted

as incompetence, even though courts tend to be somewhat less forgiving

where counsel altogether overlooks a possible objection or opportunity.

3 LaFave, Israel & King, Criminal Procedure § 11,10(c), at 714-15 (2nd

ed. 1999).

          However, Cofske's trial counsel did not overlook the issue;

the PSR resolved it in Cofske's favor and his counsel objected when the

probation officer reversed ground and raised the recommended BOL to 20.

At sentencing, Cofske's counsel then abandoned the objection. If

counsel gave away without any cause a known argument which had at least

some basis in guideline language and policy, this would at least take

some explaining, especially where (as here) the jump in the BOL from 12

to 20 greatly increased the guideline sentence range.

          Yet there is an obvious reason why counsel must have thought

it in Cofske's interest to abandon the claim of error. In the plea

agreement, the government had agreed (1) to drop the second count of

the indictment, (2) to support a three-level reduction for acceptance

of responsibility, (3) to seek an adjusted offense level of 20 (and not

a higher level), and (4) not to seek any upward departure.7 Cofske in


     7At oral argument, the government summarized the potential
changes that it could have sought: an upward departure on the
ground that past criminal history was underrepresented, U.S.S.G.
§ 4A1.3; a two-level obstruction of justice adjustment for false
statements to the court, U.S.S.G. § 3C1.1; and a four-level

                                 -13-
turn made concessions of his own; and these included not only a guilty

plea on the first count but also a commitment to take the position at

sentencing that the BOL "should be 20 . . . because the defendant had

one prior felony conviction for a crime of violence."

           It is virtually certain that prior to the sentencing, defense

counsel noticed, or was reminded of, this commitment. Nothing else

explains counsel's about face at the hearing after previously

contesting the issue. Any breach of the agreement by Cofske permitted

the government to withdraw from the plea agreement and to use against

Cofske any statements he had made. Conceivably, the government could

have asked to reinstate the second count; and certainly, it could have

urged any sentence it chose including one based on no acceptance of

responsibility plus upward departures on at least two different

grounds.

           Thus, the decision to stick with the BOL of 20 was almost

certainly a judgment call to retain the advantages of a plea and to

forgo an argument for a lower BOL already rejected by two out of three

circuits. It is impossible to describe such a choice as incompetent

representation. Nagi v. United States, 90 F.3d 130, 134-35 (6th Cir.

1996). Indeed, given the threatened consequences to Cofske of backing



adjustment under U.S.S.G. § 2K2.1(b)(5) for possessing or
transferring firearms in connection with another felony offense.
Although the court on its own imposed the section 2K2.1(b)(5)
adjustment, the government did not seek it.

                                 -14-
out of the plea agreement, it is impossible to see how Cofske could now

satisfy the prejudice prong of Strickland by showing that he would have

been better off if his counsel had challenged the use of the state

conviction.

          If anything turned on counsel's precise thought process, we

would remand for an evidentiary hearing, but in this case none is

necessary. The Strickland test, as already noted, is an objective one;

as long as counsel performed as a competent lawyer would, his or her

detailed subjective reasoning is beside the point. Here, counsel was

aware of the BOL objection and, given the downside risks already

described, trial counsel had ample reason to comply at sentencing with

commitments undertaken in the plea agreement, whose soundness (taken as

a whole) is not even directly disputed by Cofske.

          This brings us to Cofske's alternative ground for relief,

namely that his appellate counsel was incompetent in not pursuing a

claim to a BOL of 12 on his direct appeal. After all, at this point

Cofske seemingly had the benefit of the government's concessions; why

then not try to get something more--namely, a reduced BOL--even if the

chances of success appeared slim? The plea agreement precluded this

tactic at the sentencing hearing; but it did not bar either side from

appealing. Indeed, the agreement provided (unnecessarily) that errors

in sentencing could be appealed under 18 U.S.C. § 3742.




                                 -15-
          Of course, Cofske's concession in the district court that a

BOL of 20 was correct might have been taken as a conclusive waiver, not

just a forfeiture subject to relief for plain error, but then again it

might not be treated as a waiver; the law in this area is far from

uniform, compare United States v. Smith, 918 F.2d 664, 668-69 & n.1

(6th Cir. 1990) (per curiam), with United States v. Nguyen, 46 F.3d

781, 783 (8th Cir. 1995), and various interpretations of the plea

agreement are possible. Thus, it may technically have been open to

appellate counsel to challenge the adverse BOL finding on direct

appeal.

          It might be enough to say that, viewed as of the time of

appeal (which is what matters in judging competence of appellate

counsel), the claim for a lower BOL was not especially promising: the

case law was divided, the guideline and commentary were both obscure,

and the 2001 amendment did not then exist. Other claims were available

for an appeal, which was in fact taken, and courts have regularly said

that appellate counsel is often well advised to choose the most

promising arguments and is not obliged to crowd a brief with less

promising ones which may detract. Jones v. Barnes, 463 U.S. 745, 751-

54 (1983); see also Burkoff & Hudson, Ineffective Assistance of Counsel

§ 9.04[2][b] (Supp. 2001) (collecting cases).

          Here, a narrower and even stronger reason exists for

rejecting an incompetency attack. On appeal, the claim to a BOL of 12


                                 -16-
could succeed only if plain error were established; even without the

plea agreement, a failure to press the BOL claim at sentencing was at

least a forfeiture. However one might come out on the merits of the

BOL issue, the BOL of 20 was not plain error for the reasons already

indicated. For all we know, a panel of this court sitting in 1997 might

easily have followed the then-majority view and said that 20 was the

correct figure.

           But there is more.    Even if the error were plain, any

competent appellate counsel would have had to consider not only the

upside but also the downside of attacking the district court's BOL

finding.   At the very least, such an attack by Cofske would have

exposed him to arguments by the government that--if resentencing were

ordered--the resentencing should be open-ended and the government

should be freed of its own commitments to support a downward adjustment

for acceptance of responsibility and to forego various upward

departures.

           Once again, the law in this area is not crystal clear; just

what the government might demand as of right, and (separately) what the

appeals and sentencing courts might allow as a matter of discretion,

could both be debated and could turn in some measure on the surrounding

circumstances.    However, Cofske is wrong in thinking that he

necessarily had a right to cherry-pick, correcting the BOL in his favor




                                 -17-
while holding everything else in the sentencing calculus constant.8 An

appellate counsel, even with a winning argument, might reasonably have

hesitated to press it if the downside risk seemed too great.

          For present purposes, it is enough that the BOL of 20 was not

plain error and that this would almost certainly have defeated a direct

appeal at the time in view of the forfeiture (also reasonable) at the

sentencing stage. Given the minimal prospects of success, appellate

counsel's failure to make such an argument on direct appeal does not

mark counsel as incompetent. This is a legal judgment that we can

easily make on this appeal and without the need for a remand.

          Courts are driven as much by facts as by doctrine, and in

criminal proceedings no panel of this court readily closes the books on

a manifest injustice. Nothing of the kind is present here. The 12

versus 20 BOL issue was known at defense counsel at the time of

sentencing; a rational choice was made to forego the argument for 12 in

order to obtain other sentencing advantages. Even with the benefit of

hindsight, there is no clear likelihood that a different choice by

counsel would have given Cofske a lower net sentence.


     8
     On any of several theories, the government could have
sought to be relieved of its obligations under the plea
agreement, see United States v. Bunner, 134 F3d 1000, 1004-5 (10
Cir. 1998); United States v. Barron, 127 F.3d 890, 895-96 (9th
Cir. 1997); United States v. Sandoval-Lopez, 122 F.3d 797, 800
(9th Cir. 1997). Further, the district court would not
automatically be limited on remand by what the government chose
to urge. United States v. Rodriguez, 112 F.3d 26, 29-30 (1st
Cir. 1997).

                                 -18-
Affirmed.




            -19-
   PERTINENT PROVISIONS OF SECTION 2K2.1

At the time of sentencing

§ 2K2.1Unlawful Receipt, Possession, or Transportation of
       Firearms or Ammunition: Prohibited Transactions
       Involving Firearms or Ammunition

            (a)   Base Offense Level (Apply the Greatest):

                    . . .

                  (4)    20, if the defendant --

                         (A) had one prior felony conviction
                         of either a crime of violence or a
                         controlled substance offense; or

                    . . .

                  (7)    12, except as provided below, or

                    . . .

            (b)   Specific Offense Characteristics

                  (1) If the offense involved three or
                  more firearms, increase as follows:

            Number of Firearms        Increase in Level

                    . . .

                  (C)     8-12                   add 3

                    . . .

After the 2001 amendment

                    . . .

                  (4)    20, if--

                         (A) the defendant committed any
                         part of the instant offense
                         subsequent to sustaining one felony

                        -20-
  conviction of either a crime of
  violence or a controlled substance
  offense; or

. . .




-21-
