UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-6735

WILLIAM WISE MURRAY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-93-470, CA-97-231)

Argued: March 2, 1999

Decided: April 6, 1999

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Vacated in part, dismissed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael S. Caldwell, Student Counsel, Appellate Litiga-
tion Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. John Michael Barton, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Steven H. Goldblatt, Director, Laura A. Dick-
inson, Student Counsel, Appellate Litigation Program, GEORGE-
TOWN UNIVERSITY LAW CENTER, Washington, D.C., for
Appellant. J. Rene Josey, United States Attorney, Marshall Prince,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted William Wise Murray of armed bank robbery in
violation of 18 U.S.C.A. § 2113(a) & (d) (West Supp. 1999). He was
subsequently sentenced to 300 months imprisonment. After an unsuc-
cessful direct appeal, see United States v. Murray, 65 F.3d 1161 (4th
Cir. 1995), Murray moved the United States District Court for the
District of South Carolina to vacate, set aside, or correct his sentence,
see 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).1 In his motion,
Murray raised several claims of ineffective assistance of counsel with
respect to his sentencing. The district court granted summary judg-
ment to the Government and denied Murray's request for a Certificate
of Appealability. On appeal, we conclude that Murray has made a
substantial showing of the denial of a constitutional right on one of
his ineffective assistance of counsel claims. Accordingly, we grant
Murray's request for a Certificate of Appealability on that claim, see
28 U.S.C.A. § 2253(c)(2) (West Supp. 1998), vacate that portion of
the district court's order, and remand for resentencing.

I.

On October 25, 1993, Murray entered a credit union and demanded
money from a teller, pointing at the money and stating "give me that."
_________________________________________________________________
1 Although Murray proceeded pro se before the district court, he was
ably represented by the Georgetown University Law Center Appellate
Litigation Program before this Court.

                     2
(S.A. at 4.) Believing that the teller triggered the silent alarm, Murray
displayed the butt of a weapon to the teller, who was six months preg-
nant at the time, and put his hand on the stock of the weapon -- a
sawed-off shotgun. A jury convicted Murray of armed bank robbery.
See Murray, 65 F.3d at 1164.

In the pre-sentence report (PSR), Murray's base offense level was
set at twenty pursuant to the robbery guideline. See U.S. Sentencing
Guidelines Manual § 2B3.1(a) (1993). The PSR also recommended a
two-level enhancement under USSG § 2B3.1(b)(1) because property
of a financial institution was taken, a five-level enhancement under
USSG § 2B3.1(b)(2)(C) because Murray displayed a firearm during
the robbery, a two-level enhancement under USSG§ 2B3.1(b)(2)(F)
because Murray made an express threat of death during the robbery,
and a two-level enhancement under USSG § 3C1.1 for obstruction of
justice.

At the sentencing hearing, Murray's trial counsel objected to only
two of the enhancements contained in the PSR. In particular, counsel
argued that Murray neither made an express threat of death nor
obstructed justice. The district court overruled the objections, and
asked counsel whether the district court had addressed all of Murray's
objections to the PSR. Counsel stated that the district court had done
so. The district court adopted the PSR and established a total offense
level of thirty-one. With a criminal history category of I, the applica-
ble guideline range was 108 to 135 months.

The Government then moved for an upward departure on two
grounds -- extreme psychological injury to the victim under USSG
§ 5K2.3, p.s., and dangerousness of the weapon used in the robbery
under USSG § 5K2.6, p.s. The district court granted a six-level depar-
ture based on the dangerousness of the weapon. With regard to
extreme psychological injury, the teller testified that she was terrified
and feared for her life when she saw Murray's gun because he was
agitated and nervous and had made it clear that if she did not give him
the money quickly he would draw the gun. The teller also testified
that she sought psychological counseling to deal with the trauma she
suffered during the robbery and that she was depressed and could not
work on the teller line for fear of being robbed. The teller stated that
the stress from the robbery caused complications in her pregnancy.

                     3
She developed gestational diabetes, which she alleges increases her
chances of developing diabetes later in life. The district court found
that a two-level upward departure was warranted.

With the additional eight levels, Murray's total offense level was
thirty-nine and his criminal history category was I, for a guideline
range of 262 to 327 months. Because the statutory maximum was
twenty-five years, the range decreased to 262 to 300 months. The dis-
trict court sentenced Murray to 300 months imprisonment, ordered
five years of supervised release, and imposed restitution in the
amount of $3380.

On direct appeal, Murray raised several claims. 2 First, he chal-
lenged certain evidentiary rulings, which this Court upheld. See
Murray, 65 F.3d at 1168-70. Next, Murray contended that "merely
revealing his gun to a teller was not sufficient support for the [two-
level] enhancement" under USSG § 2B3.1(b)(2)(F) for making an
express threat of death. This Court disagreed. See id. at 1170. Finally,
Murray challenged the extent of the court's six-level upward depar-
ture under USSG § 5K2.6, p.s., for the dangerousness of the weapon.
This Court found that "[t]he district court's use by analogy of a guide-
line reflecting similar conduct -- possession of a shotgun -- supports
the reasonableness of its decision." Id. at 1171. After noting that Mur-
ray did not challenge the five-level enhancement under USSG
§ 2B3.1(b)(2)(C) for brandishing, displaying, or possessing a firearm
during the robbery, see id. at 1171 n.10, this Court affirmed Murray's
conviction and sentence, see id. at 1172.

On January 27, 1997, Murray filed a § 2255 motion, challenging
his 300-month sentence.3 Murray contended that his trial counsel was
_________________________________________________________________
2 Murray was represented by trial counsel on direct appeal.
3 Murray's § 2255 motion is not time-barred under the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA), even though it was filed more than one year after Mur-
ray's conviction became final. Under Brown v. Angelone, 150 F.3d 370,
372 (4th Cir. 1998) (holding that the one-year limitations period does not
apply retroactively to cases where the conviction became final before the
AEDPA's effective date), Murray had until April 26, 1997, to file his
§ 2255 motion. Because he filed it in January 1997, it was timely filed.

                    4
ineffective on several grounds: (1) counsel failed to object at sentenc-
ing to the multiple enhancements under USSG § 2B3.1(b)(2)(C) and
(F) on the ground that the enhancements were alternative and not
cumulative; (2) counsel failed to challenge on appeal the district
court's upward departures for the dangerousness of the weapon and
extreme psychological injury;4 and (3) counsel failed to investigate
adequately the validity of the arrest warrant and indictment.5

In response to Murray's motion, the Government moved for sum-
mary judgment. (J.A. at 241.) With regard to Murray's first claim, the
Government contended (1) that subdivision (F) relating to the express
threat of death "is uniquely independent of the other subdivisions"
because it contains no reference to a weapon; and (2) that enhance-
ments under USSG § 2B3.1(b)(2)(C) and (F) were proper because
Murray both displayed the shotgun and placed his hand on the
weapon. Although noting the arguable claim to the contrary, the Gov-
ernment contended that Murray's counsel provided effective assis-
tance in light of Murray's acquittal on four unarmed bank robbery
charges and the district court's statements at sentencing that counsel
ably represented Murray. "At worst," the Government argued, "Mur-
ray's trial counsel was a victim of an unclear sentencing guideline."
(J.A. at 250.) Turning to Murray's second claim, the Government
noted that counsel did in fact challenge on direct appeal the six-level
upward departure for the dangerousness of the weapon.

The district court granted the Government's motion for summary
judgment and denied Murray a Certificate of Appealability. Specifi-
cally, the district court concluded that "[a]s the United States argues
in its memorandum, and the [c]ourt finds,[Murray] was provided
_________________________________________________________________

4 Murray has abandoned his claim that trial counsel was ineffective for
failing to object to the district court's upward departure for extreme psy-
chological injury by failing to raise it in his brief. See Canady v. Crestar
Mortgage Corp., 109 F.3d 969, 973 (4th Cir. 1997) (holding that issues
raised, but not briefed, are deemed waived on appeal).
5 Murray has abandoned his third claim on appeal by failing to raise it
in his brief. See Canady v. Crestar Mortgage Corp., 109 F.3d 969, 973
(4th Cir. 1997) (holding that issues raised, but not briefed, are deemed
waived on appeal).

                     5
effective assistance of counsel with respect to each matter that he has
raised." (J.A. at 260.) Murray noted a timely appeal.

II.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court established a two-part test for reviewing claims of ineffective
assistance of counsel. See id. at 690. First, Murray must demonstrate
that his trial counsel's performance fell below an objective standard
of reasonableness. See id. at 690. This, however, is no simple task. A
court's review of trial counsel's performance is"highly deferential."
Id. at 689. Indeed, courts must afford a strong presumption that coun-
sel's performance was within the wide range of professionally compe-
tent assistance. See id. If Murray is able to demonstrate that his trial
counsel's performance was objectively unreasonable, he must then
"show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 694. As a result, Murray's trial counsel may be
deemed ineffective only if his "conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on
as having produced a just result." Id. at 686.

In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme Court
clarified the meaning of prejudice under Strickland. See id. at 369-70.
Although the Supreme Court in Strickland focused primarily on
whether "the result of the proceeding would have been different,"
Strickland, 466 U.S. at 694, the Supreme Court in Lockhart clarified
that "an analysis focusing solely on mere outcome determination . . .
is defective," Lockhart, 506 U.S. at 369. Instead, a proper prejudice
analysis must consider "whether the result of the proceeding was fun-
damentally unfair or unreliable." Id. As a result, a court may not "set
aside a conviction or sentence solely because the outcome would have
been different but for counsel's error." Id. at 369-70.

With these principles in mind, we review Murray's two claims of
ineffective assistance of counsel.

                     6
A.

Murray first claims that his trial counsel was ineffective for failing
to object at sentencing to multiple enhancements under USSG
§ 2B3.1(b)(2)(C) and (F).6 Sentencing is a critical stage of the trial
proceedings, thereby entitling a defendant to effective assistance of
counsel. See United States v. Breckenridge, 93 F.3d 132, 135 (4th Cir.
1996). Counsel's failure "to object to an improper application of the
sentencing guidelines may amount to ineffective assistance of coun-
sel." Id. at 136.

In the robbery guideline, there are six specific offense characteris-
tics that may be applied to enhance the base offense level. At issue
here is subsection (b)(2):

           (2) (A) If a firearm was discharged, increase by 7 levels;
           (B) if a firearm was otherwise used, increase by 6
           levels; (C) if a firearm was brandished, displayed, or
           possessed, increase by 5 levels; (D) if a dangerous
           weapon was otherwise used, increase by 4 levels; (E)
_________________________________________________________________
6 Barring extraordinary circumstances, an error in the application of the
Sentencing Guidelines cannot be raised in a § 2255 proceeding. Section
2255 provides relief for cases in which "the sentence was in excess of the
maximum authorized by law." Thus, while § 2255 applies to violations
of statutes establishing maximum sentences, it does not apply to errors
in the application of the Sentencing Guidelines. See, e.g., Auman v.
United States, 67 F.3d 157, 161 (8th Cir. 1995) (holding that absent a
"miscarriage of justice," ordinary questions of Guidelines interpretation
are not cognizable on collateral review); Scott v. United States, 997 F.2d
340, 341 (7th Cir. 1993) ("A claim that the judge misapplied the Sen-
tencing Guidelines does not challenge the jurisdiction of the court or
assert that the judge exceeded the statutory maximum."); Knight v.
United States, 37 F.3d 769, 773 (1st Cir. 1994) (misapplication of Sen-
tencing Guidelines not proper claim under § 2255); 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, however, Murray is able to circumvent
the general rule by styling his sentencing claim as an ineffective assis-
tance of counsel claim. See Auman v. United States, 67 F.3d 157, 162
(8th Cir. 1995).

                    7
          if a dangerous weapon was brandished, displayed, or
          possessed, increase by 3 levels; or (F) if an express
          threat of death was made, increase by 2 levels.

USSG § 2B3.1(b)(2) (emphasis added). In the notes to the general
application principles, the guidelines provide that"[w]ithin each spe-
cific offense characteristic subsection, . . . the offense level adjust-
ments are alternative; only the one that best describes the conduct is
to be used." USSG § 1B1.1, comment. (n.4) (emphases added).

As an initial matter, we conclude that the base offense level for
robbery under the Sentencing Guidelines may not be increased for
both brandishing a firearm and making an express threat of death.
First, USSG § 2B3.1(b)(2) specifically lists the enhancements using
the disjunctive "or." Second, as noted above, Application Note 4 to
USSG § 1B1.1 states that enhancements that are listed within the
same specific offense characteristic may not be applied cumulatively.
Finally, every Circuit to consider the issue has held that only one
enhancement from USSG § 2B3.1(b)(2) may be applied. See United
States v. Triplett, 104 F.3d 1074, 1082 (8th Cir.) (finding multiple
enhancements improper because § 2B3.1(b)(2) was written in disjunc-
tive and each subdivision encompassed conduct in subsequent subdi-
visions), cert. denied, 117 S. Ct. 1837 (1997); United States v. Omar,
16 F.3d 1168, 1170-71 (11th Cir.) (holding that§ 2B3.1(b)(2) "offers
a set of alternative increases"), modified on other grounds, 24 F.3d
1356, 1357 (11th Cir. 1994); United States v. Farrier, 948 F.2d 1125,
1127 (9th Cir. 1991) (same).

Whether Murray's trial counsel's failure to object to the improper
application of the sentencing guidelines constituted ineffective assis-
tance of counsel is a mixed question of law and fact that this Court
reviews de novo. See Griffin v. Warden, 970 F.2d 1355, 1357 (4th
Cir. 1992). For the reasons that follow, we conclude that Murray's
trial counsel was objectively unreasonable for failing to object to the
cumulative enhancement under USSG § 2B3.1(b)(2), and that Murray
was prejudiced thereby.

First, the plain language of § 2B3.1(b)(2) is written in the disjunc-
tive. It is well settled that the use of the disjunctive "or" precludes the
application of more than one of the available alternatives. See, e.g.,

                     8
Webster's Ninth New Collegiate Dictionary 829 (1990) (defining "or"
as "a function word to indicate an alternative"). For example, in
United States v. Hawkins, 76 F.3d 545, 550 (4th Cir. 1996), this Court
held that the disjunctive language of 18 U.S.C.A.§ 401, which allows
a federal court to punish criminal contempt "by fine or imprison-
ment," precludes a court from imposing both imprisonment and a
fine. Thus, based on the plain language alone, Murray's trial counsel
should have concluded that only one subsection from USSG
§ 2B3.1(b)(2) could be used to enhance Murray's base offense level.7

Second, even if the disjunctive language of § 2B3.1(b)(2) was not
sufficiently plain, the Sentencing Guidelines set forth a general appli-
cation principle that permits courts to apply only one enhancement
within a specific offense characteristic. See USSG § 1B1.1, comment.
(n.4). It is well established that the "commentary in the Guidelines
Manual that interprets or explains a guideline is authoritative unless
it violates the Constitution or a federal statute, or is inconsistent with,
or a plainly erroneous reading of, that guideline." Stinson v. United
States, 508 U.S. 36, 38 (1993). In United States v. Curtis, 934 F.2d
553, 556 (4th Cir. 1991), this Court specifically held that Application
Note 4 to § 1B1.1 is authoritative. As the Third Circuit noted, "famil-
iarity with the structure and basic content of the Guidelines . . . has
become a necessity for counsel who seek to give effective representa-
tion." United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992); see also
United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997), cert.
denied, 118 S. Ct. 865 (1998).
_________________________________________________________________
7 We acknowledge that, while subdivisions (A)-(E) are logical subsets
of one another, i.e., the conduct under subdivision (A), discharging a
weapon, encompasses the conduct described in subdivision (C), bran-
dishing a weapon, the conduct described in subdivision (F) lacks any ref-
erence to a weapon. As such, it would seem, at least at first blush, that
subdivision (F) is independent of the other subdivisions and, therefore,
could be applied in combination with any one of those subdivisions. In
fact, despite Murray's contentions to the contrary, making an express
threat of death is not encompassed by subdivision (C). (For example,
under USSG § 2B3.2, a defendant may receive an enhancement both for
an express threat of death and for the involvement of a weapon.) As
such, the error is not as "obvious" as Murray would argue. In the end,
however, we believe that the plain language of the Sentencing Guidelines
renders counsel's failure to object unreasonable.

                    9
Finally, in addition to the plain language of § 2B3.1(b)(2) and the
official commentary, case law available at the time of Murray's sen-
tencing would have supported an objection. In Farrier, the Ninth Cir-
cuit held that a defendant's sentence under § 2B3.1 could not be
enhanced both for the use of a firearm and for making an express
threat of death. Notably, even the Government in Farrier conceded
that the error was obvious. 948 F.2d at 1127. In sum, we believe that
counsel's failure to object was unreasonable.

Having established that his trial counsel was objectively unreason-
able, we conclude that Murray can also establish prejudice. Murray's
total offense level was thirty-nine and his criminal history category
was I, for a guideline range of 262 to 327 months. The range could
not exceed 300 months, however, based on the statutory maximum of
twenty-five years. Because the multiple enhancements under
§ 2B3.1(b)(2)(C) and (F) were improper, Murray's total offense level
was higher than required under the Sentencing Guidelines.

In determining what effect applying either USSG§ 2B3.1(a)(2)(C)
or (F) would have on Murray's total offense level, 8 we note that Mur-
ray would still have a base offense level of twenty under USSG
§ 2B3.1(a), a two-level enhancement under USSG§ 2B3.1(b)(1), a
two-level enhancement under USSG § 3C1.1, and an eight-level
upward departure under USSG §§ 5K2.3, p.s., and 5K2.6, p.s. These
numbers remain unchanged because there were no challenges by
Murray at the sentencing hearing or because his challenges were over-
ruled by the district court and upheld by this Court on direct appeal.
If the five-level enhancement under USSG § 2B3.1(b)(2)(C) best
describes Murray's conduct during the robbery, the total offense level
of thirty-seven coupled with a criminal history category of I yields a
range of 210 to 262 months; if, however, the two-level enhancement
under USSG § 2B3.1(b)(2)(F) best describes Murray's conduct, the
total offense level of thirty-four coupled with a criminal history cate-
gory of I yields a range of 151 to 188 months. Therefore, the 300-
month sentence Murray received as a result of the multiple enhance-
ments exceeds the highest possible sentence under offense level
thirty-four by 112 months and under offense level thirty-seven by
_________________________________________________________________
8 Section 2B3.1(b)(2) of the guidelines currently in effect is identical to
the 1993 guidelines under which Murray originally was sentenced.

                    10
thirty-eight months. As a result, but for counsel's error, the outcome
would have been different. See Strickland, 466 U.S. at 694. Moreover,
we conclude that the potential change in sentence was sufficiently sig-
nificant to render the proceeding unfair. See Lockhart, 506 U.S. at
369; see also Martin v. United States, 109 F.3d 1177, 1178 (7th Cir.
1996) (holding that the potential change of sentence must be a signifi-
cant amount in order to satisfy the prejudice prong); Durrive v. United
States, 4 F.3d 548, 551 (7th Cir. 1993) (same).

Because Murray established that counsel's performance fell below
an objective standard of reasonableness and that he was prejudiced
thereby, we vacate Murray's sentence and remand for further pro-
ceedings in the district court. Cf. Breckenridge , 93 F.3d at 140.9 In
resentencing Murray, the district court should determine whether
brandishing, displaying, or possessing a firearm under USSG
§ 2B3.1(b)(2)(C) or making an express threat of death under USSG
§ 2B3.1(b)(2)(F) best describes Murray's conduct during the robbery.
See USSG § 1B1.1, comment. (n.4). Once the district court deter-
mines which subdivision should apply, it should adjust the offense
level and resulting guideline range accordingly and sentence Murray
within that range.

B.

In addition to enhancing Murray's sentence under§ 2B3.1(b)(2) for
the display of a firearm, the district court departed upward under
_________________________________________________________________
9 In Breckenridge, this Court found that it did not need to vacate defen-
dant's sentence at the time it disposed of the appeal. Whether resentenc-
ing was necessary depended on the factual findings to be made by the
district court regarding whether offenses were related for purposes of
sentencing as a career offender. If the district court found that the
offenses were not related, then counsel's failure to raise the issue resulted
in no prejudice and no further proceedings were necessary. But if the dis-
trict court found that the offenses were related, counsel's failure to raise
the issue constituted ineffective assistance of counsel requiring defendant
to be resentenced. See Breckenridge, 93 F.3d at 140. Here, unlike
Breckenridge, regardless of which subdivision-- § 2B3.1(b)(2)(C) or
(F) -- the district court ultimately determines should apply, Murray's
guideline range and resulting sentence necessarily will be lowered.

                    11
§ 5K2.6 for the use of a dangerous weapon. In light of the enhance-
ment, Murray contends that the departure constituted double counting,
i.e., the factor warranting the upward departure was already taken into
account by the underlying offense guideline.

As the Government correctly noted below, this Court addressed the
propriety of this upward departure on direct appeal and found that the
departure was warranted. See Murray, 65 F.3d at 1170-72. Murray's
claim, therefore, must fail because he cannot show that his trial coun-
sel's performance was objectively unreasonable or that he was preju-
diced. See Strickland, 466 U.S. at 688, 694. Accordingly, we dismiss
this portion of the appeal.

III.

In sum, we conclude that Murray has made a substantial showing
of the denial of a constitutional right on the first of his two ineffective
assistance of counsel claims. Accordingly, we grant Murray's request
for a Certificate of Appealability as to his first claim, see 28 U.S.C.A.
§ 2253(c)(2), vacate that portion of the district court's order, and
remand for resentencing. We deny a Certificate of Appealability and
dismiss the appeal as to Murray's second claim.

VACATED IN PART, DISMISSED IN PART, AND REMANDED

                     12
