[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1222
FRANK A. BUCO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Frank A. Buco on brief pro se.
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A. John Pappalardo, United States Attorney, Wendy Warring,
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Trial Attorney, U.S. Department of Justice, New England Bank
Fraud Task Force, and Margaret R. Hinkle, Director, New England
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Bank Fraud Task Force, on brief for appellee.
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June 10, 1993
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Per Curiam. On this appeal from the denial of a motion
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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.
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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).
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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
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(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
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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
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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
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478, 488 (1986). Here the legal error was discoverable at
the time of sentencing, and the failure of the probation
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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
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(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
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(1st Cir. 1992), relied upon by petitioner, involved direct
appeal where the preconditions to habeas relief do not apply.
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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
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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
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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
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of the petition.
It is so ordered.
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