USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

___________________
No. 93-1222

FRANK A. BUCO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
___________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
___________________

Frank A. Buco on brief pro se.

_____________
A. John Pappalardo, United States Attorney, Wendy Warring,
__________________
______________
Trial Attorney, U.S. Department of Justice, New England Bank
Fraud Task Force, and Margaret R. Hinkle, Director, New England
___________________
Bank Fraud Task Force, on brief for appellee.
__________________
June 10, 1993
__________________

Per Curiam.
__________
under

On

28 U.S.C.

government has

this appeal from the denial of a motion

2255

filed by petitioner

conceded that an error,

Frank Buco, the

unnoticed by anyone,

was made in the calculation of the sentencing guideline range

when petitioner was originally sentenced.
of

bank fraud

and

related offenses

Buco was convicted

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

trust.

U.S.S.G.

for abuse of

a position of

3B.1.1(b),

3B1.3 (1990).

Buco did

guidelines

in

the

not

appeal the sentence.

Although
sentencing

the

permitted

both

effect

at

adjustments, the

time

of

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.

____

3B1.3 (1990) (as amended by Amendment 346).

concedes that the

2-point upward adjustment

position of trust was impermissible

Clause.
But

it

The government
for abuse of

under the Ex Post

Facto

See Miller v. Florida, 482 U.S. 423, 429-35 (1987).

___ ______
_______
also

contends

that

the

issue

was

not

properly

preserved and that, in any event, Buco was not prejudiced.

The guideline
was

30-37

range computed at the

months,

but

departing

time of sentencing
downward

reluctantly) to reflect Buco's cooperation

(somewhat

with authorities,

the district court imposed a 27-month sentence.

The correct

guideline range, based on the government's concession, is 2430 months.

was the

The government argues that

minimum the district

the 27-month sentence

court deemed appropriate.

rejecting the government's suggestion of a departure down

21 months, the district

below

27 months

culpability in

court stated that it would

because of

Buco's greater

comparison to his

In
to

not drop

involvement and

codefendants who

received

sentences

of

up

district court,
have

imposed

to 24

months.

Buco

contends that

the

utilizing the correct guideline range, would

a

21-month

sentence

(the

proper

guideline

minimum less three months for cooperation).

Under
(1982),

United States v.
______________

a procedurally

reviewed on the merits

for

Frady,
_____

defaulted

456

U.S. 152,

habeas claim

164-68

may not

unless the petitioner can

be

show cause

the default as well as actual prejudice from the alleged

violation.

An

exception

to Frady's
_____

cause plus

prejudice

requirement exists where failure to consider the claim on the

merits would result in
Coleman
_______

v. Thompson,
________

contends that
amended

a fundamental miscarriage of justice.

111 S.Ct.

guidelines

in

Buco's

to identify

order

to establish

petitioner must show that

with .
478,
the

impeded

time of

Here

report

error are

and the

sufficient

We do not agree.

"cause"

for

the default,

the

some "objective factor external to

[defense] counsel's efforts

. . the procedural rule."

488 (1986).

the

Buco

in applying the

presentence

cause for his procedural default.

the defense

(1991).

the probation officer's error

prosecutor's failure

In

2546, 2564

Murray v. Carrier, 477 U.S

______
_______

the legal error

sentencing, and

the failure

-3-

to comply

was discoverable at
of

the probation

officer

and

prosecutor to

discover

the

mistake does

not

excuse defense counsel's own inadvertence any more than would

a trial
There

court's failure to
was

compliance

no

external

with

the

recognize error in
impediment

rule

to

requiring

its rulings.

defense
that

counsel's

objections

guideline computations be made at or before sentencing.

lawyer

either

provisions

neglected

to read

the

pertinent

to
The

guideline

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
could be

met.

demonstrate
alleged]

`a

"To

show

reasonable

erro[r], the

`prejudice,'

defendant

probability that,

result of

been different.'"

Sawyer v.
______

(1992) (concurring

opinion of

the remarks made

requirement

but

must

for [the

the proceeding

would have

Whitley, 112 S.Ct.

_______

2514, 2532

Mr. Justice Blackmun).

at sentencing, it seems

to us at

From

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

unless

both cause

and prejudice

default

bars the

petition unless

not be
are shown,

resolved because
the procedural

a miscarriage

of justice

would result.
(1st Cir.

United States v. Ortiz, 966 F.2d

______________
_____

1992), relied upon by

707, 717-18

petitioner, involved direct

appeal where the preconditions to habeas relief do not apply.

-4-4-

The contours of the "miscarriage of justice" concept are

not precisely delimited, and different standards may apply in
different

contexts.

U.S.L.W. 4421,

within

United States
______________

4424 (1993).

collateral review
falls

See
___

the

But the

jurisprudence shows
correct

guideline

v.

Orlando,
_______

61

Supreme Court's recent

that when a
range,

there

sentence
is

no

miscarriage of justice even though it is possible that absent

a mistake the sentencing court might have imposed a different
sentence.
down

Sawyer,
______

112 S.

Ct. at 2518-23.

Without

laying

a blanket rule, we do not think that this case presents

a miscarriage of justice--a
prejudice requirement--and we

standard more stringent than the

therefore affirm the dismissal

______
of the petition.
It is so ordered.
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