                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 8 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-3171
                                                   (D.C. No. 97-3182-RDR)
    JOSEPH KEITH BICKETT,                                 (D. Kan.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before TACHA, LOGAN, and LUCERO, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Joseph Keith Bickett appeals the district court’s order denying

his motion to vacate, set aside or correct sentence, filed pursuant to 28 U.S.C.

§ 2255. He contends that the sentence imposed in the underlying criminal case

should run concurrently with an earlier sentence imposed by a Kentucky federal

court. He asserts that his attorney provided constitutionally ineffective assistance

of counsel by failing to argue that he was entitled to the provisions of United

States Sentencing Guideline § 5G1.3 (1987). He claims the sentencing court

applied the 1989 version of § 5G1.3, and improperly imposed his Kansas sentence

to run consecutively to his Kentucky sentence. Defendant does not otherwise

challenge his conviction or sentence.

      Defendant was convicted in federal court in Kentucky of the crimes

of conspiracy to distribute and possession with intent to distribute over

100 kilograms of marijuana, aiding and abetting his co-conspirators to possess

with intent to distribute approximately 150 pounds of marijuana, being a felon in

possession of a firearm, and simple possession of cocaine. See United States v.

Bickett, Nos. 90-5710, 90-5711, 90-5712, 90-5726, 90-5760 & 90-5783, 1991 WL

175285, **2 (6th Cir. Sept. 10, 1991). He there received a 240 month

prison sentence.

      Defendant was charged in federal court in Kansas with several counts of

conspiracy and possession with intent to distribute large quantities of marijuana,


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as well as one count charging violation of the Travel Act, 18 U.S.C. § 1952(a)(3).

He entered a guilty plea to the Travel Act count; the prosecution dismissed the

remaining counts; and defendant was sentenced to five years’ imprisonment, to

run consecutively to his recently imposed Kentucky sentence. Our court

dismissed defendant’s appeal of that the sentence, which argued only that the

district court abused its discretion in running the sentences consecutively instead

of concurrently. See United States v. Bickett, No. 90-3214, 1991 WL 128217

(10th Cir. July 3, 1991) (no jurisdiction to review for alleged abuse of discretion).



      Defendant filed this § 2255 motion within the time limit imposed by the

Anti-Terrorism and Effective Death Penalty Act, see United States v. Simmonds,

111 F.3d 737, 746 (10th Cir. 1997) (“[P]risoners whose convictions became final

on or before April 24, 1996 must file their § 2255 motions before April 24,

1997.”). This court issued a certificate of appealability pursuant to 28 U.S.C.

§ 2253(c)(1)(B).

      The guideline defendant claims should have been applied, U.S.S.G. § 5G1.3

(1987), provided:

            If at the time of sentencing, the defendant is already serving
      one or more unexpired sentences, then the sentences for the instant
      offense(s) shall run consecutively to such unexpired sentences,
      unless one or more of the instant offenses(s) arose out of the same
      transactions or occurrences as the unexpired sentences. In the latter


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      case, such instant sentences and the unexpired sentences shall run
      concurrently, except to the extent otherwise required by law.

                                   Commentary

            This section reflects the statutory presumption that sentences
      imposed at different times ordinarily run consecutively. See
      18 U.S.C. §3584(a). This presumption does not apply when the new
      counts arise out of the same transaction or occurrence as a prior
      conviction.

            Departure would be warranted when independent prosecutions
      produce anomalous results that circumvent or defeat the intent of the
      guidelines.

(emphasis added).

      The 1989 version of § 5G1.3, which defendant claims was erroneously

applied to him, provided:

            If the instant offense was committed while the defendant was
      serving a term of imprisonment . . ., the sentence for the instant
      offense shall be imposed to run consecutively to the unexpired term
      of imprisonment.


                                   Commentary

                                       ...

             Where the defendant is serving an unexpired term of
      imprisonment, but did not commit the instant offense while serving
      that term of imprisonment, the sentence for the instant offense may
      be imposed to run consecutively or concurrently with the unexpired
      term of imprisonment. The court may consider imposing a sentence
      for the instant offense that results in a combined sentence that
      approximates the total punishment that would have been imposed



                                        -4-
      under § 5G1.2 (Sentencing on Multiple Counts of Conviction) had all
      of the offenses been federal offenses for which sentences were being
      imposed at the same time.

(emphasis added).

      A sentencing court applies the guidelines in effect at the time of sentencing

unless that version imposes harsher punishment than the guidelines in effect at the

time of a defendant’s offense. See United States v. Saucedo, 950 F.2d 1508, 1513

(10th Cir. 1991), overruled on other grounds, Stinson v. United States, 508 U.S.

36 (1993). In that situation, the earlier version is applied to avoid violation of the

Ex Post Facto Clause. See id. Here, we agree with defendant that the 1987

version of U.S.S.G. § 5G1.3 applies.

      Issues that could have been raised on direct appeal may not be raised for

the first time in a § 2255 motion absent a showing of cause and prejudice. See

United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). Constitutionally

ineffective assistance of counsel can satisfy the cause and prejudice requirement.

See id. A claim of ineffective assistance of counsel generally should be brought

in collateral proceedings under § 2255. See United States v. Svacina, 137 F.3d

1179, 1187 (10th Cir. 1998). To establish that counsel provided ineffective

assistance, a defendant must establish both that his attorney’s representation was

deficient and that the substandard performance prejudiced him. Strickland v.

Washington, 466 U.S. 668, 687 (1984).


                                          -5-
      The presentence report informed the sentencing judge that defendant, with

a group of acquaintances from Kentucky, engaged in a scheme to grow and

harvest marijuana in several states, including seven counties in Kansas.

According to the report, after harvest, “at least some of the marijuana was

transported by truck to Kentucky.” II R. 12. Additional information was

disclosed to the sentencing judge, but not to defendant or his attorney, at the time

defendant was sentenced. The previously undisclosed information was quoted by

the district court in denying the § 2255 motion. The undisclosed presentence

report informed the sentencing judge that if the Kansas offense arose from the

same transactions or occurrences as the Kentucky offense, the Kansas sentence

shall be imposed concurrently, and offered arguments for imposing sentence

consecutively as well as concurrently to the Kentucky sentence.

      Defendant contends his appellate counsel 1 provided constitutionally

ineffective assistance in his direct criminal appeal by failing to argue that the

1987 guideline required concurrent sentences. “When a defendant alleges his

appellate counsel rendered ineffective assistance by failing to raise an issue on

appeal, we examine the merits of the omitted issue.” Cook, 45 F.3d at 392. Here,

even though the sentencing court may have been alerted to the correct guideline’s


1
       The same attorney represented defendant at his sentencing hearing and on
direct appeal. New counsel appears in this § 2255 proceeding.


                                         -6-
requirement that the Kansas sentence run concurrently with the Kentucky sentence

if the two convictions arose from the same transactions or occurrences, the court

did not make any findings. Consequently, had the issue been raised properly there

would have had nothing on which the appellate court could base its review, and

the case would have been remanded for findings pursuant to U.S.S.G. § 5G1.3

(1987). We therefore hold that defense counsel’s performance on direct appeal

was deficient under Strickland.

      We are unable to evaluate whether defense counsel’s deficient performance

prejudiced defendant because a finding of whether the Kansas offense arose from

the same transactions or occurrences as the Kentucky offenses was not made

either at the sentencing hearing or on consideration of the § 2255 motion.

Therefore, we conclude that this matter should be remanded to the district court.

See United States v. Glover, 97 F.3d 1345, 1350 (10th Cir. 1996) (critical

findings not made at sentencing or on § 2255; remanded for findings); United

States v. Kissick, 69 F.3d 1048, 1057 (10th Cir. 1995), cert. denied, 117 S. Ct.

1008 (1997) (same). On remand, the district court should determine whether the

Kansas offense arose from the same transactions or occurrences as the Kentucky

offenses. If the court finds that the offenses did not arise from the same

transactions or occurrences, then defendant suffered no prejudice from his

attorney’s failure to raise the issue, and he is not entitled to be resentenced.


                                          -7-
      If, on the other hand, the court finds that the Kansas and Kentucky offenses

arose from the same transactions or occurrences, the court should determine

whether there are grounds for an upward departure from the guidelines, justifying

imposing the Kansas sentence consecutively to the Kentucky sentence. If the

court so finds, it is directed to make the necessary findings for an upward

departure. Cf. United States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir.

1991) (considering 1989 version of U.S.S.G. § 5G1.3; holding that where

guideline indicates the new sentence must run consecutively, sentencing court

may run new sentence concurrently if it determines that guideline departure is

appropriate). Defendant is entitled to resentencing if the district court finds that

the Kansas offense arose from the same transactions or occurrences as the

Kentucky offenses, and that no grounds exist for an upward departure from the

sentencing guidelines that would justify imposing the Kansas sentence

consecutively to the Kentucky sentence.

      REVERSED and REMANDED for further proceedings consistent with this

order and judgment.



                                                     Entered for the Court

                                                     James K. Logan
                                                     Circuit Judge



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