UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-7299

GARRY BUTLER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-91-194-MU, CA-96-249-MU)

Submitted: November 30, 1998

Decided: January 22, 1999

Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Dismissed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Garry Butler, Appellant Pro Se. Brian Lee Whisler, OFFICE OF THE

UNITED STATES ATTORNEY, Charlotte, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Garry Butler appeals from the district court's order denying relief

on his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.

1998). We dismiss the appeal in part, vacate the district court's order

in part, and remand to the district court for further proceedings.

Garry Butler was convicted after a jury trial of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C.

§§ 841(a)(1), 846 (1994). The charges against Butler arose out of the

arrest of Lynette Townsend, a member of the conspiracy who cooperated with the Government. Townsend was arrested on September 26

carrying approximately 389 grams of cocaine. She agreed to a controlled delivery of the cocaine to the other conspirators, which was

completed on September 27.

Count I of Butler's indictment charged Butler and various coconspirators with conspiracy to possess with intent to distribute "cocaine" on or about September 27, 1991. Subsequent to the indictment,

the Government filed an amended information stating that the amount

of cocaine the conspiracy was responsible for distributing was in

excess of one kilogram of "cocaine base." Apparently, sometime after

the indictment, the Government concluded that Butler and his coconspirators bought powder cocaine and then cooked it into "crack"

cocaine for resale. The bulk of the evidence presented at trial concerned Townsend's delivery of the 389 grams of cocaine to the conspirators on September 27, although the Government did present

some evidence of the conspiracy's distribution of"crack" cocaine.

The jury verdict form stated that the jury found Butler guilty of Count

I of the indictment, conspiracy to possess with intent to distribute "cocaine." Likewise, the judgment form stated that Butler was found

guilty of conspiracy to possess "cocaine."

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The presentence investigation report (PSR) found Butler responsible for 1.5 kilos to five kilos of "crack" cocaine and set his base

offense level based on this finding. Although Butler objected at sentencing that he should not be held responsible for the distribution of

"crack" cocaine when he was only charged with distribution of powder cocaine, the sentencing court adopted the PSR and set Butler's

offense level based on a finding that he was responsible for at least

1.5 kilos of crack cocaine. The court set Butler's total offense level

at forty-two, which along with Butler's criminal history category of

II, resulted in an imprisonment range of 360 months to life under the

U.S. Sentencing Guidelines Manual Ch. 5, pt. A (1997). The court

sentenced Butler to 420 months' imprisonment.

Butler filed the instant motion under 28 U.S.C.A.§ 2255, contending that the sentence imposed was outside the statutory maximum for

the offense of conviction. Butler's offense of conviction is conspiracy

to distribute "cocaine" on or about September 27, 1991.1 Neither side

disputes that the amount of cocaine involved is thus approximately

389 grams of powder cocaine.2 The sentence imposed should not have

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1 Although the district court only considered Butler's claims under the

rubric of ineffective assistance of counsel, a liberal reading of Butler's

§ 2255 motion discloses that he wishes to raise his claims substantively.

See Boag v. MacDougall, 454 U.S. 364, 365 (1982). Further, although

Butler did not challenge the sentence as being outside the statutory maximum at sentencing or on direct appeal, we find that his claim is properly

before this court. See United States v. Wynn, 987 F.2d 354, 359 (6th Cir.

1993) (sentencing beyond statutory maximum plainly violated right to

due process under Fifth Amendment); United States v. Metzger, 3 F.3d

756, 757-58 (4th Cir. 1993) (holding that government's failure to argue

for cause and prejudice review under United States v. Frady, 456 U.S.

152, 167-68 (1982), precludes government from asserting waiver argument and allows court to reach merits).

2 We note that the Government filed an information stating that the

conspiracy was responsible for the distribution of in excess of one kilo

of cocaine base, apparently in an attempt to amend the indictment. However, the indictment specifically charged Butler with conspiracy to distribute "cocaine." This thus raises a question as to the Government's

ability to amend the indictment by an information charging the distribution of a different narcotic under 21 U.S.C. § 841(a)(1). It could be

argued that the Government was attempting to alter a material element

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exceeded the statutorily authorized maximum sentence for the offense

of conviction, the distribution of 389 grams of powder cocaine. See

United States v. Estrada, 42 F.3d 228, 230-32, 232 n.4 (4th Cir.

1994); United States v. Carrozza, 4 F.3d 70, 81 (1st Cir. 1993);

United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir. 1993).

Based on 389 grams of powder cocaine, the statutorily authorized

maximum sentence is twenty years. See 21 U.S.C. § 841(b)(1)(C)

(1994). Although the guidelines range exceeds the statutory maximum, the statutory maximum takes precedence over the guidelines

range. See USSG § 5G1.1; United States v. Edwards, ___ U.S. ___,

___, 118 S. Ct. 1475, 1477 (1998). Under the Guidelines, when the

statutorily authorized maximum sentence is less than the minimum of

the guidelines range, as here, the maximum statutory sentence shall

be the guidelines sentence. See USSG § 5G1.1(a). Accordingly, Butler's guidelines sentence is twenty years, and he must be resentenced

accordingly. We therefore grant a certificate of appealability on this

issue, vacate the district court's order as to this claim, and remand for

further proceedings.

Butler also contends that he received ineffective assistance of

appellate counsel due to counsel's failure to raise this issue on direct

appeal. Although appellate counsel is not required to raise every nonfrivolous argument available on direct appeal, this issue was both significant and obvious, and should have been raised. See Jones v.

Barnes, 463 U.S. 745, 751-52 (1983); Kelly v. United States, 29 F.3d

1107, 1112 (7th Cir. 1994). We conclude that counsel's performance

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of the offense, which it cannot do except by superseding indictment. See

United States v. Downer, 143 F.3d 819, 822-23 (4th Cir. 1998); United

States v. Graffia, 120 F.3d 706, 710 (7th Cir. 1997). Regardless, however, it is clear from the testimony presented at trial, the jury verdict

form, and the judgment and commitment order that Butler was only convicted of conspiracy to distribute "cocaine." Accordingly, although the

Government could permissibly present evidence of the conspiracy's distribution of crack cocaine to be considered as relevant conduct for sentencing purposes under USSG § 1B1.3, the offense of conviction and its

corresponding statutory maximum sentence remained unaltered by the

information.

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was objectively unreasonable and that it resulted in prejudice to Butler. See Strickland v. Washington, 466 U.S. 668, 687-95 (1984). We

also grant a certificate of appealability on this issue, vacate the district

court's order as to this claim, and remand for further proceedings.

We find no merit to Butler's additional claim that he was denied

his right to a fair trial due to the prosection's failure to correct allegedly false testimony. See Giglio v. United States, 405 U.S. 150, 154

(1972). Likewise, the record shows that the sentencing court, considering both trial testimony and evidence presented at the sentencing

hearing, made specific findings on the amount of drugs for which

Butler should be held responsible as relevant conduct. See Fed. R.

Crim. P. 32(c)(1). We thus deny a certificate of appealability and dismiss the appeal as to these claims.

In conclusion, we grant certificates of appealability as to Butler's

sentencing and ineffective assistance of counsel claims, vacate the

district court's order as to those issues, and remand for further proceedings. We deny a certificate of appealability and dismiss the

appeal as to all other issues. We deny Butler's motions to appoint

counsel and for oral argument because the facts and legal contentions

are adequately set forth in the materials before the court and argument

would not aid the decisional process.

DISMISSED IN PART, VACATED IN PART, AND REMANDED 

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