Revised March 5, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-20320 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH KARL KIMLER,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court for the Southern District of Texas _________________________________________________________________ February 11, 1999 Before KING, Chief Judge, POLITZ and BENAVIDES, Circuit Judges.
KING, Chief Judge:
Kenneth Kimler was convicted by a federal jury for
violations of federal mail fraud and counterfeiting statutes.
After his sentencing, Kimler filed a motion to correct his
sentence in federal district court. He alleged, inter alia, that
he received ineffective assistance of counsel in violation of the
Sixth Amendment because his attorney failed to argue that the
sentencing court’s application of the then-current version of the
sentencing guidelines, including sections made effective after
his mail fraud offenses were completed, violated the Ex Post Facto Clause of the Constitution. The district court granted
summary judgment to the government on Kimler’s claims. The
district court granted Kimler leave to appeal the ex post facto
claims, and we now affirm the district court’s judgment denying
collateral relief.
I. FACTUAL AND PROCEDURAL HISTORY
Kimler was charged by grand jury indictment filed January
13, 1993, in the United States District Court for the Southern
District of Texas, with having committed the offenses of mail
fraud in violation of 18 U.S.C. §§ 1341-42 (counts one through
fourteen), and intentionally trafficking in carbon steel pipe
containing counterfeit marks in violation of 18 U.S.C. § 2320
(count fifteen). It is uncontested that Kimler committed each
act of mail fraud in 1988 and the conduct giving rise to his
counterfeiting conviction occurred in May 1990. On November 22,
1993, Kimler was found guilty on counts one, three through
thirteen, and fifteen. Kimler was sentenced on March 21, 1994 to
serve fifty-one months’ imprisonment, followed by three years of
supervised release. This court affirmed his conviction on direct
appeal. See United States v. Kimler, No. 94-20264, 1995 WL
84536, 48 F.3d 532 (5th Cir. Feb. 17, 1995) (unpublished
opinion).
Kimler then filed a motion for a reduction of his sentence
pursuant to 28 U.S.C. § 2255 on June 11, 1996. Kimler asserted
that he was denied effective assistance of trial and appellate
2 counsel because his attorney failed to challenge his sentencing
under United States Sentencing Guidelines (U.S.S.G.) § 2F1.1 and
2F1.1(b)(4) and because his attorney failed to raise Ex Post
Facto Clause concerns regarding guidelines amendments at
sentencing or on appeal. The district court granted the
government summary judgment on each of Kimler’s claims on March
22, 1997. On August 13, 1997, the district court granted
Kimler’s request for a certificate of appealability (COA) to
appeal the issue of whether his counsel was ineffective for
failing to raise the ex post facto claims, and denied Kimler a
COA on his other ineffective assistance of counsel claims. A
panel of this court then denied Kimler’s request to expand the
scope of the COA to include his other ineffective assistance of
counsel claims. See United States v. Kimler, 150 F.3d 429 (5th
Cir. 1998).
II. DISCUSSION
A. Kimler’s Claims
Kimler argues that his trial and direct appellate counsel
was ineffective for failing to raise issues relating to the
application of the Ex Post Facto Clause of the Constitution to
his sentence. In order to understand Kimler’s arguments clearly,
we must first set forth the specific details of the district
court’s determination of Kimler’s sentence.
In sentencing Kimler, the district court relied in part on
the Probation Office’s calculation of the appropriate sentence,
3 as reflected in its pre-sentencing report (PSR). The probation
officer who prepared the PSR calculated Kimler’s sentence using
the 1993 edition of the Guidelines Manual. The 1993 guidelines
included, for the first time, the codification of the “one book
rule” in § 1B1.11. One provision of the one book rule provides
that when a defendant is convicted of multiple offenses, some
occurring before and some occurring after a revision of the
guidelines manual, “the revised edition of the Guidelines Manual
is to be applied to both offenses.” U.S. SENTENCING GUIDELINES MANUAL
§ 1B1.11(b)(3).
Kimler committed the mail fraud offenses in 1988 and the
counterfeiting offense in 1990. The one book rule, therefore,
did not directly govern because it was not added to the
guidelines until after Kimler’s offenses were completed.
However, the 1993 guidelines and the 1990 guidelines in effect
when Kimler committed the counterfeiting offense were the same
for all relevant purposes other than the one book rule. Because,
as we discuss infra, the addition of the one book rule to the
guidelines was simply a codification of existing court practices
and a clarifying amendment that a sentencing court could properly
apply to conduct occurring before the amendment, the probation
officer applied the 1993 guidelines.
In calculating Kimler’s sentence with reference to the 1993
guidelines, the PSR first recommended that because all twelve
offenses involved “substantially the same harm,” as defined in
4 § 3D1.2(d), they should be grouped into a single group for
sentencing purposes.1 The PSR then noted that the total offense
level for Kimler’s group could be determined with reference
either to the guideline applicable to mail fraud, § 2F1.1, or
counterfeiting, § 2B5.3, as application of either guideline
provided for the same total offense level. Both guidelines
provided for a base offense level of six and added offense levels
depending on the same levels of loss associated with the
offenses. The PSR estimated the amount of loss associated with
Kimler’s offenses as $5,670,000 and thus, referencing
§ 2F1.1(b)(1)(O), increased Kimler’s offense level by fourteen.
The PSR then recommended increasing Kimler’s offense level by two
pursuant to § 2F1.1(b)(2)(A), because the offense involved more
than minimal planning and was a scheme to defraud more than one
victim, adding two points under § 2F1.1(b)(4), because the
offense involved the conscious or reckless risk of serious bodily
injury, and, finally, adding four levels pursuant to § 3B1.1(a),
because Kimler acted as an organizer and/or leader of the
criminal activity involving five or more participants. In all,
1 Section 3D1.2(d) provides that counts involve “substantially the same harm”
[w]hen the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.
5 the PSR determined that the appropriate offense level was twenty-
eight. Based on a criminal history category of I, the
appropriate sentence, according to the PSR, was a term of
seventy-eight to ninety-seven months.
The district court adopted the PSR recommendation in all
respects save one. Although the district court stated that the
amount of loss reflected in the PSR was an “accurate calculation
based upon the best evidence available,” the court, commenting on
the difficulty of calculating the loss in a case such as this,2
concluded that “the fair thing to do in this situation would be
to depart to an amount of loss contained in the specific counts
of the indictment which Mr. Kimler was found guilty of
committing.” Thus, the district court applied the amount of loss
contained in the indictment, $531,589.27, and increased Kimler’s
offense level by ten, four less than the PSR recommendation. The
district court sentenced Kimler to the minimum sentence possible
under the guidelines given an offense level of twenty-four and a
criminal history category of I, fifty-one months.3
2 Kimler was found guilty of selling surplus pipe accompanied by altered mill test reports. The district court stated that the loss calculation was complicated by testimony indicating that some of Kimler’s customers were satisfied with the performance of the pipe and that some of the surplus pipe that Kimler sold fell within necessary tolerances despite the altered reports. 3 The sentencing guidelines provided for a range of between 51 and 63 months of imprisonment.
6 Kimler claims that his trial and appellate counsel was
ineffective for failing to argue that the district court erred in
applying the 1993 version of the sentencing guidelines, the
version in force at the time of his sentencing, instead of the
1988 version that was in effect when his mail fraud counts were
completed. Kimler claims that the district court’s use of the
more recent guidelines in computing his sentence violated the Ex
Post Facto Clause because his total offense level would have been
less under the 1988 guidelines than under the 1993 guidelines.
Specifically, Kimler points to two ways in which he received
a greater sentence because of the district court’s use of the
1993 guidelines. First, Kimler notes that the 1993 version of
§ 2F1.1, the fraud guideline, included amendments made effective
in 1989 which added levels to the fraud loss table, increasing
the offense level for both the amount of loss recommended in the
PSR and the amount that the district court actually used in
sentencing Kimler. Second, Kimler argues that the district
court’s use of the 1993 guidelines added two additional levels
because § 2F1.2(b)(4), which increases the offense level for
risking serious bodily injury, did not exist in the 1988
guidelines in effect when he completed the mail fraud offenses.
Lastly, Kimler argues that his attorney was constitutionally
deficient for failing to argue that the district court erred in
applying § 1B1.11(b)(3)’s one book rule, which Kimler contends is
the district court’s only justification for using the revised
7 sentencing guidelines, because that section was not enacted until
1993.4
B. Standard of Review
We review a grant of summary judgment de novo. See
Kopycinski v. Scott, 64 F.3d 223, 225 (5th Cir. 1995). Summary
judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986).
We review Kimler’s ineffective assistance of counsel claims
under the well-established standard articulated in Strickland v.
Washington, 466 U.S. 668 (1984). To succeed on his claim, Kimler
must prove that his counsel’s performance was deficient and that
the deficiency prejudiced his defense. See Lackey v. Johnson,
116 F.3d 149, 152 (5th Cir. 1997); Faulder v. Johnson, 81 F.3d
515, 519 (5th Cir. 1996). To prove prejudice, Kimler must show
that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
4 Kimler also argues that the sentencing court erred in determining that the serious bodily injury enhancement applied and in calculating the appropriate amount of loss. Both this court and the district court declined to issue Kimler a COA to pursue these issues on appeal. Our appellate review is limited to the issues specified in the COA and we therefore do not consider these issues. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
8 been different.” Strickland, 466 U.S. at 694. An attorney’s
failure to raise a meritless argument thus cannot form the basis
of a successful ineffective assistance of counsel claim because
the result of the proceeding would not have been different had
the attorney raised the issue. See Williams v. Collins, 16 F.3d
626, 634-35 (5th Cir. 1994); United States v. Victoria, 876 F.2d
1009, 1012 (1st Cir. 1989) (Breyer, J.). If we determine that
Kimler’s claims lack merit and therefore that he did not suffer
prejudice from his attorney’s failure to raise them, there is no
need to consider both Strickland prongs. See Strickland, 466
U.S. at 696.
C. Merit of the Ex Post Facto Claims
A sentencing court must apply the version of the sentencing
guidelines effective at the time of sentencing unless application
of that version would violate the Ex Post Facto Clause of the
Constitution. See United States v. Castaneda-Cantu, 20 F.3d
1325, 1336 (5th Cir. 1994); United States v. Mills, 9 F.3d 1132,
1136 n.5 (5th Cir. 1993). The Ex Post Facto Clause “forbids the
imposition of punishment more severe than the punishment assigned
by law when the act to be punished occurred.” Weaver v. Graham,
450 U.S. 24, 30 (1981). The clause generally prohibits the
retroactive application of the sentencing guidelines if it
results in a more onerous penalty. See Miller v. Florida, 482
U.S. 423, 431-33 (1987); United States v. Rogers, 126 F.3d 655,
660 (5th Cir. 1997). “[C]entral to the ex post facto prohibition
9 is a concern for ‘the lack of fair notice and governmental
restraint when the legislature increases punishment beyond what
was prescribed when the crime was consummated.’” Miller, 482
U.S. at 430 (quoting Weaver, 450 U.S. at 30).
The district court did not err in finding that the
calculation of Kimler’s sentence did not violate the Ex Post
Facto Clause on these facts. Simply put, Kimler had adequate
notice at the time he committed the counterfeiting offense in
1990 that his mail fraud offenses would be grouped with the
counterfeiting offense and therefore that the 1990 guidelines
would apply. It was Kimler’s decision to continue his illegal
activities related to his mail fraud offenses after the revisions
in the sentencing guidelines, and that decision allowed the
sentencing court to determine his appropriate sentence with
reference to the guidelines in effect when the last criminal act
in the grouped series was committed without running afoul of the
Constitution.
Kimler does not argue that the sentencing court improperly
applied § 3D1.2(d) to group his mail fraud counts with his
counterfeiting count for sentencing purposes. We have previously
held that where a sentencing court groups offenses committed
before a change in the sentencing guidelines with offenses after
the amendment, and then applies the amended guideline in
determining a defendant’s appropriate sentence, the Ex Post Facto
Clause is not implicated. See Castaneda-Cantu, 20 F.3d at 1335-
10 36. In Castaneda-Cantu, the defendants had been convicted of
multiple counts, occurring both before and after November 1,
1991, when the sentencing guidelines were changed to add
§ 2S1.1(b)(1), which adds three offense levels if a defendant
knew that laundered funds were drug proceeds. See id. The
sentencing court, applying § 3D1.2(d),5 grouped the offenses
together and applied the post-revision guidelines in order to
determine the appropriate sentence. See id. The defendants
argued, like Kimler, that application of the revised sentencing
guidelines to the group violated the Ex Post Facto Clause.
See id. We rejected the defendants’ contention, stating that
because each defendant had been charged with at least one count
subsequent to the guidelines amendment, the sentencing court
5 The opinion states that the district court applied § 3D1.3(d) in grouping the defendants’ offenses. There is no § 3D1.3(d), and the opinion makes clear that the district court actually applied § 3D1.2(d).
11 properly applied the amended guidelines to the grouped offenses.6
See id.
Our decision in Castaneda-Cantu comports with the view of
several other circuit courts that have considered this issue.
For example, in United States v. Bailey, 123 F.3d 1381, 1403-07
(11th Cir. 1997), the Eleventh Circuit reasoned that application
of the sentencing guidelines in effect when the last of a string
of related offenses was committed was consistent with the Ex Post
Facto Clause. In that case, the defendant, Bailey, was found
guilty of nineteen related counts of mail fraud, operating a
firearms business without a license, possession of a machine gun,
possession of hand grenades, making a false statement to a grand
jury, and obstructing an official investigation. See id. at
1389. Bailey committed the offenses between March 1989 and April
1992, see id. at 1403 n.30, and argued on appeal that guidelines
provisions enacted after some of his discrete offenses were
6 We find Castaneda-Cantu persuasive despite the fact that the two defendants at issue in that case were found guilty of a conspiracy. Though we note that mail fraud is a completed offense, and not a continuing offense like conspiracy, see United States v. Miro, 29 F.3d 194, 198 (5th Cir. 1994), our analysis in Castaneda-Cantu did not rely on the conspiracy count in determining that the defendants’ sentences were constitutional. Instead, as in the case at bar, we determined that the sentencing court properly grouped offenses under § 3D1.2(d), and that, although some of the grouped offenses occurred before the guidelines revisions, the last offense in the grouped series was committed after the revisions. As we discuss infra, in such situations a defendant has notice that if he continues to commit offenses that are grouped together, the revised guidelines will apply to the group.
12 committed could not be applied to his sentence consistent with
the Ex Post Facto Clause. See id. at 1403. The Eleventh Circuit
disagreed, determining that the grouping and one book rules
provided proper notice to Bailey that his earlier offenses would
be sentenced under the revised guidelines if he continued to
commit related offenses. See id. at 1404-05. The court reasoned
that
the one book rule, together with the Guidelines grouping rules and relevant conduct, provide that related offenses committed in a series will be sentenced together under the Sentencing Guidelines Manual in effect at the end of the series. Thus, a defendant knows, when he continues to commit related crimes, that he risks sentencing for all of his offenses under the latest, amended Sentencing Guidelines Manual. Analogous to a continuous criminal offense, like conspiracy, the one book rule provides notice that otherwise discrete criminal acts will be sentenced together under the Guidelines in effect at the time of the last of those acts.
Id. (footnotes omitted). The court then concluded that the use
of the edition of the guidelines in effect when Bailey committed
the last of his discrete, but related, offenses did not deprive
him of “‘fair warning’ of the punishment for his crimes,” and was
therefore consistent with the Ex Post Facto Clause. Id. at 1406
(quoting Miller, 482 U.S. at 430).
Other federal courts have reached similar conclusions,
deciding that the Ex Post Facto Clause is not violated when a
defendant is sentenced, pursuant to the one book rule, under
revised sentencing guidelines for grouped offenses. See United
States v. Cooper, 63 F.3d 761, 762 (8th Cir. 1995) (determining
13 that defendant’s sentence did not violate Ex Post Facto Clause
where defendant’s three offenses, only one of which was committed
after revision of sentencing guidelines, were grouped and
sentencing court applied harsher revised guidelines); United
States v. Regan, 989 F.2d 44, 48-49 (1st Cir. 1993) (find no ex
post facto violation where defendant was sentenced for multiple
counts of embezzlement based on revised guidelines when some
counts were committed before guidelines revision); United States
v. Tucker, 982 F. Supp. 1309, 1317 (N.D. Ill. 1997) (following
Cooper and Regan, finding that application of one book rule to
multiple grouped offenses did not violate Ex Post Facto Clause).
But see United States v. Ortland, 109 F.3d 539, 545-47 (9th Cir.)
(vacating district court’s sentence calculated under revised,
more onerous, guideline as violative of Ex Post Facto Clause
where some grouped offenses were committed before revision),
cert. denied, 118 S. Ct. 141 (1997).
We agree with the analysis of the Eleventh Circuit in Bailey
and the majority of circuit courts that have faced this issue and
conclude that a defendant has notice that the version of the
sentencing guidelines in effect at the time he committed the last
of a series of grouped offenses will apply to the entire group.
Application of the revised guidelines thus does not violate the
Ex Post Facto Clause. In this case, because Kimler was sentenced
under the sentencing scheme in place when he committed the
counterfeiting offense, the last offense in the series of grouped
14 offenses, he was on notice that the revised guidelines would
apply to his mail fraud counts as well.
Kimler argues, however, that he had no notice that he could
be sentenced for the mail fraud offenses under the revised
guidelines because all of his illegal conduct, including his
counterfeiting offense, was complete before the codification of
the one book rule in 1993. Thus, Kimler asserts, even if he had
notice that his mail fraud and counterfeiting offenses would be
grouped under § 3D1.2(d) in 1990, he had no fair warning that the
sentencing court would apply the revised guidelines in
determining his offense level, instead of the loss tables found
in the 1988 version of the sentencing guidelines.
This argument lacks merit. Although § 1B1.11(b)(3) was not
codified until 1993, the provision simply reflected the existing
practice of courts in applying the sentencing guidelines.
See United States v. Anderson, 61 F.3d 1290, 1301 n.7 (7th Cir.
1995). In addition, the one book rule, as codified in § 1B1.11,
“is a clarifying rather than a substantive amendment,” Bailey,
123 F.3d at 1406 n.38; see United States v. Barnett, 5 F.3d 795,
802 n.12 (5th Cir. 1993), and thus could properly have been
considered at Kimler’s sentencing, which took place after
§ 1B1.11 was added to the guidelines. See U.S. SENTENCING GUIDELINES
MANUAL § 1B1.11(b)(2); United States v. Camacho, 40 F.3d 349, 354
(11th Cir. 1994); United States v. Aguilera-Zapata, 901 F.2d
1209, 1213-14 (5th Cir. 1990).
15 Thus, we find that the district court properly granted
summary judgment to the government on Kimler’s claim that he was
denied the effective assistance of counsel because his attorney
failed to raise the ex post facto claims. Despite the fact that
the 1988 sentencing guidelines, in effect when Kimler committed
mail fraud, included a different fraud loss table and did not
include a two-level increase for risking serious bodily injury,
Kimler had proper notice that, if he continued to commit related
offenses that would be grouped under § 3D1.2(d), he would be
sentenced under the guidelines in use when he committed the last
offense in the grouped series. Kimler chose to commit the
counterfeiting offense in 1990, after the sentencing guidelines
had changed. The Ex Post Facto Clause does not protect Kimler
from the consequences of his decision. Having determined that
Kimler’s ex post facto challenges lack merit, we cannot say that
Kimler was prejudiced because the sentencing court did not
consider them. Kimler was therefore not deprived of his Sixth
Amendment right to the effective assistance of counsel.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.