UNITED STATES of America, Plaintiff-Appellee, v. Gregory Joseph HALTER, Defendant-Appellant, 217 F.3d 551

LAY, Circuit Judge. Gregory Joseph Halter (Halter) challenges the district court’s denial of his petition for habeas relief under 28 U.S.C. § 2255 and the denial of his Motion for a New Trial and Motion to Alter or Amend. Because we find error in the district court’s characterization of dismissed charges as “more serious” than Halter’s charge under 18 U.S.C. § 924(c)(1), we vacate and remand for resentencing. This case involves a constitutionally defective guilty plea to a pre-Bailey charge of using and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

This case arises in the wake of the Supreme Court’s recent decision in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In Bousley, the Court stated that a defendant seeking to set aside a guilty plea under Bailey must show actual innocence of any and all “more serious charges” foregone by the government in the course of plea bargaining. Bousley, 523 U.S. at 624, 118 S.Ct. 1604.

The question presented here is whether Halter must show his actual innocence of three dismissed distribution charges before he can overcome his procedural default in failing to appeal the validity of his guilty plea. On February 14, 1992, Halter pleaded guilty to Counts One, Five, and Six of a six-count indictment.

Count One charged conspiracy under 21 U.S.C. § 846 relating to drug trafficking in violation of 21 U.S.C. § 841(a)(1); Count Six charged money laundering under 18 U .S.C. § 1956(a)(l)(A)(i); and Count Five was a charge under 18 U.S.C. § 924(c)(1) for using and carrying a firearm during the drug offense. As a result of the plea bargain, the court dismissed Counts Two, Three, and Four, which were charges under 21 U.S.C. § 841(a)(1) relating to the distribution of cocaine on three separate occasions.

The district court grouped Counts One and Six according to United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 3D1.2(

c) and § 3D1.3(a). Because Count One’s Base Offense Level was greater than that of Count Six (34 versus 26), Count One was the dominant count from which the district court calculated the total sentence. See U.S. Sentencing Guidelines MANUAL § 3D1.3(a) (1992). Working from a Base Offense Level of 34, the district court assigned Halter four criminal history points (placing him in Criminal History Category III), a four-level increase for his role in the offense, and a two-level reduction for acceptance of responsibility.

Consequently, Halter had a total offense level of 36, resulting in a sentencing range between 235 and 293 months for the guilty pleas on Counts One and Six, plus the mandatory sixty consecutive months for Count Five. Upon the government’s motion, the defendant was given a reduction in sentence by 33 )é percent for substantial assistance and thereafter was sentenced to 197 months imprisonment for the three counts. Halter brought a motion under 28 U.S.C. § 2255 to set aside his § 924(

c) mandatory sentence under Bousley. On May 14, 1999, the district court denied the motion. Noting that the plea transcript revealed that neither the defendant nor the court correctly understood the essential elements of § 924(

c) at the time of the plea, the district court found Halter had only possessed the firearms as opposed to using or carrying them. Thus, the court found the plea of guilty to the § 924(

c) charge was constitutionally invalid. Due to Halter’s procedural default, however, the court could not set aside the § 924(

c) plea without Halter first demonstrating his actual innocence on the dismissed drug trafficking charges, if those charges were more serious than the § 924(

c) charge. Recognizing that the dismissed charges provided for a maximum statutory punishment of twenty years, see 21 U.S.C. § 841(b)(1)(C), the district court found the dismissed charges were more serious than the § 924(

c) charge, which carries a mandatory statutory penalty of only five years. Thus, the district court denied Halter’s petition because Halter could not show he was actually innocent of the “more serious” dismissed distribution charges. On July 2, 1999, the district court entertained Halter’s Motion for New Trial and Motion to Alter or Amend his judgment of conviction.

Halter argued that the dismissed charges could not be “more serious,” since the addition of those counts would have no effect on his sentence because the amount of drugs involved in the dismissed counts was already contemplated in establishing his Guideline range on Count One.

The court noted that Halter’s approach was “arguably a reasonable [one],” but rejected it nonetheless. (Ruling Denying Motion for New Trial and Motion to Alter or Amend at 1-2 (July 2, 1999).) The court reiterated that “the correct measure of the seriousness of a crime charged is the maximum punishment prescribed for that crime.” (Id. at 2.) We cannot agree with the analysis of the district court.

We are of the opinion that actual punishment as determined by the Guidelines is the proper basis for identifying the “more serious charge.” Although Congress sets the maximum penalty for the violation of criminal statutes, it has also adopted the Guidelines as the proper sentencing procedure to be followed by all federal courts in determining actual punishment for federal crimes. See Stinson v.

United States, 508 U.S. 36, 42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (“As we have observed, ‘the Guidelines bind judges and courts in the exercise of their uneontested responsibility to pass sentence in criminal cases.’ ” (quoting Mistretta v. United States, 488 U.S. 361, 391, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989))). See also United States v. Douglas, 64 F.3d 450, 452 (8th Cir.1995) (applying the binding nature of Guidelines to Guidelines amendments). As such, we are persuaded by the Third Circuit’s reasoning in United States v. Lloyd, 188 F.3d 184 (3d Cir.1999).

In Lloyd, the court was faced with the issue of determining whether a dismissed felon in possession count qualified as “more serious” under Bousley. The court found significance in the fact that § 924(

c) carries a mandatory consecutive term while the felon in possession charge carried a Guideline range of 27 to 33 months. See Lloyd, 188 F.3d at 189.

The Court observed: We reject as improper the comparison urged by the government of the general maximum alloivable penalty for [section 922] to the mandatory penalty for [section 924], Rather, it is the actual penalty prospectively assessed this defendant for each Count — determined in accordance with the refining criteria of the United States Sentencing Guidelines and set forth in the government’s Presen-tencing Report — that is relevant to our comparison of the seriousness of the respective charges at the time of the plea bargain. Id. at 189 n. 13 (emphasis added).

We recognize that the statutory maximum serves to limit the actual sentence imposed under the Guidelines where the latter might produce a Base Offense Level resulting in a range that exceeds the maximum provided in the statute. It is not sensible, however, to apply an abstract statutory maximum punishment when the application of the Guidelines to the same conduct leads to a period of imprisonment much shorter than the five-year mandatory sentence under § 924(c).

Therefore, we agree with the Third Circuit that the actual punishment, as opposed to the statutory maximum, is the relevant factor in comparing the seriousness of the charges. In light of this, § 924(

c) is obviously the more serious charge despite the statutory maximum of the dismissed charges. The three dismissed charges involved the distribution of 49.61 grams of cocaine on one occasion and 61.7 grams of cocaine on the other two occasions. Standing alone, these offenses carry Base Offense Levels of fourteen and sixteen, respectively. The Guidelines direct the district court to group all related counts, however. Had Counts Two, Three and Four not been dismissed, they would have been grouped under U.S.S.G. § SD1.2(

c) and § 3D1.3(a), along with Counts One and Six. Upon grouping, the sentences imposed for each grouped count run concurrently, as was the case with Counts One and Six. Had the dismissed charges been successfully prosecuted and grouped with Counts One and Six, they too would have resulted in concurrent sentences. Since the Base Offense Levels for Counts Two through Four range from 14 to 16, Count One, with its Base Offense Level of 34, would remain the dominant charge for sentencing purposes. As a result, the overall calculation would have remained unchanged.

Consequently, the distribution counts, even if not dismissed, would have less impact upon the defendant’s overall punishment than the five-year mandatory consecutive sentence under § 924(c). Thus, the distribution charges are less serious. The Guidelines themselves help us discern the relevant factors in determining the “more serious” offense.

The Guidelines state that where multiple counts involving substantially the same harm are involved, “the most serious of the counts compris[es] the Group.” Sentencing Guidelines Manual § 3D1.3(a) (1998). “Most serious” is then defined as “the highest offense level of the counts in the Group.” Id. Thus, the Guidelines themselves specifically refer to the “most serious” count as being the one with the higher offense level. We choose to adopt this understanding of the phrase “more serious” for the purpose of applying Bousley.

On this basis, this court finds that the district court’s opinion should be vacated and the case remanded to the district court for resentencing. The constitutional invalidity of the § 924(

c) count requires the district court to set aside Count Five. To overcome his procedural default, Halter need not show actual innocence of the dismissed charges since they are, on their face, less serious than the § 924(

c) count. . Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). . The Pre-Sentence Report states that the applicable grouping Guideline for the conspiracy and money laundering counts is § 3D 1.2(d). Actually, the proper grouping Guideline is § 3D 1.2(c). . If these were the only charges successfully brought against Halter, they would be grouped under U.S.S.G. § 3D 1.2(d), and the maximum sentence would be controlled by the aggregate quantity of drugs. See Sentencing Guidelines Manual § 3D1.3(b) (1998).

In this case, the aggregate quantity would be 173.01 grams, resulting in a Base Offense Level of 18. . Because they were dismissed, Counts Two through Four were only included as part of Halter’s relevant conduct, and their attendant drug quantities comprised part of the total amount of drugs included in the conspiracy charge. .On remand, in imposing sentence using its previous Base Offense Level, the district court is at liberty to consider whether there are any other relevant factors within the factual circumstances of the offenses and the plea involved.

Although Halter is not guilty of carrying or using a firearm under § 924(c), the court might still find that he possessed a firearm during the drug trafficking offenses. This may be a factor for the court to consider under the Guidelines in rendering the actual sentence to be given. See Sentencing Guidelines Manual § 2D1.1(b)(1) (1998); United States v. Turpin, 920 F.2d 1377, 1386-87 (8th Cir.1990).