* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOSEPH KEITH BICKETT,

Defendant-Appellant. No. 97-3171 (D.C. No. 97-3182-RDR) (D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant Joseph Keith Bickett appeals the districtcourt’s order denying his motion to vacate, set aside or correct sentence , filed pursuant to 28 U.S.C. § 2255. He contends that the sentence imposed in t he underlying criminal case should run concurrently with an earlier sentence imposed by a Kentucky federal court. He asserts that his attorney provided const itutionally ineffective assistance of counsel by failing to argue that he was entitled to the provisions of United States Sentencing Guideline § 5G1.3 (1987). He cla ims the sentencing court applied the 1989 version of § 5G1.3, and improperlyimposed his Kansas sentence to run consecutively to his Kentucky sentence. Def endant does not otherwise challenge his conviction or sentence. Defendant was convicted in federal court in Kentucky of the crimes of conspiracy to distribute and possession with int ent to distribute over 100 kilograms of marijuana, aiding and abetting his co-conspirators to possess with intent to distribute approximately 150 pounds of marijuana, being a felon in possession of a firearm, and simple possession of c ocaine. See United States v. Bickett , Nos. 90-5710, 90-5711, 90-5712, 90-5726, 90-5760 & 90-5783, 1991 WL 175285, **2 (6th Cir. Sept. 10, 1991). He there re ceived a 240 month prison sentence. Defendant was charged in federal court in Kansas wi th several counts of conspiracy and possession with intent to distribute large quantities of marijuana,-3-

as well as one count charging violation of the Trav el Act, 18 U.S.C. § 1952(a)(3). He entered a guilty plea to the Travel Act count; t he prosecution dismissed the remaining counts; and defendant was sentenced to fi ve years’ imprisonment, to run consecutively to his recently imposed Kentucky sentence. Our court dismissed defendant’s appeal of that the sentence, which argued only that the district court abused its discretion in running the sentences consecutively instead of concurrently. See United States v. Bickett , No. 90-3214, 1991 WL 128217 (10th Cir. July 3, 1991) (no jurisdiction to reviewfor alleged abuse of discretion).

Defendant filed this § 2255 motion within the time limit imposed by the Anti-Terrorism and Effective Death Penalty Act, see United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997) (“[P]risoners wh ose convictions became final on or before April 24, 1996 must file their § 2255 motions before April 24, 1997.”). This court issued a certificate of appeal ability pursuant to 28 U.S.C. § 2253(c)(1)(B). The guideline defendant claims should have been app lied, U.S.S.G. § 5G1.3 (1987), provided:

If at the time of sentencing, the defendant is alre ady serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpire d sentences, unless one or more of the instant offenses(s) arose out of the same transactions or occurrences as the unexpired senten ces. In the latter-4-

case, such instant sentences and the unexpired sent ences shall run concurrently, except to the extent otherwise required by law. Commentary This section reflects the statutory presumption that sentences imposed at different times ordinarily run consecuti vely. See 18 U.S.C. §3584(a). This presumption does not appl y when the new counts arise out of the same transaction or occurre nce as a prior conviction. Departure would be warranted when independent prose cutions produce anomalous results that circumvent or defeatthe intent of the guidelines. (emphasis added). The 1989 version of § 5G1.3, which defendant claims was erroneously applied to him, provided:

If the instant offense was committed while the defe ndant was serving a term of imprisonment . . ., the sentence for the instant offense shall be imposed to run consecutively to th e unexpired term of imprisonment.
Commentary

. . . Where the defendant is serving an unexpired term of imprisonment, but did not commit the instant offens e while serving that term of imprisonment, the sentence for the ins tant offense may be imposed to run consecutively or concurrently wit h the unexpired term of imprisonment. The court may consider imposing a sentence for the instant offense that results in a combined sentence that approximates the total punishment that would have b een imposed-5-

under § 5G1.2 (Sentencing on Multiple Counts of Con viction) had all of the offenses been federal offenses for which sen tences were being imposed at the same time. (emphasis added). A sentencing court applies the guidelines in effectat the time of sentencing unless that version imposes harsher punishment thanthe guidelines in effect at the time of a defendant’s offense. See United States v. Saucedo , 950 F.2d 1508, 1513 (10th Cir. 1991), overruled on other grounds , Stinson v. United States , 508 U.S. 36 (1993). In that situation, the earlier version is applied to avoid violation of the Ex Post Facto Clause. See id. Here, we agree with defendant that the 1987 version of U.S.S.G. § 5G1.3 applies. Issues that could have been raised on direct appeal may not be raised for the first time in a § 2255 motion absent a showing of cause and prejudice. See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). Constitutiona lly ineffective assistance of counsel can satisfy the c ause and prejudice requirement.
See id . A claim of ineffective assistance of counsel gen erally should be brought in collateral proceedings under § 2255. See United States v. Svacina , 137 F.3d 1179, 1187 (10th Cir. 1998). To establish that cou nsel provided ineffective assistance, a defendant must establish both that hi s attorney’s representation was deficient and that the substandard performance prej udiced him. Strickland v. Washington , 466 U.S. 668, 687 (1984).1 The same attorney represented defendant at his sent encing hearing and on

direct appeal. New counsel appears in this § 2255 proceeding.

-6- The presentence report informed the sentencing judg e that defendant, with a group of acquaintances from Kentucky, engaged in a scheme to grow and harvest marijuana in several states, including seve n counties in Kansas. According to the report, after harvest, “at least s ome of the marijuana was transported by truck to Kentucky.” II R. 12. Addi tional information was disclosed to the sentencing judge, but not to defen dant or his attorney, at the time defendant was sentenced. The previously undisclose d information was quoted by the district court in denying the § 2255 motion. T he undisclosed presentence report informed the sentencing judge that if the Ka nsas offense arose from the same transactions or occurrences as the Kentucky of fense, the Kansas sentence shall be imposed concurrently, and offered argument s for imposing sentence consecutively as well as concurrently to the Kentuc ky sentence. Defendant contends his appellate counsel 1 provided constitutionally ineffective assistance in his direct criminal appea l by failing to argue that the 1987 guideline required concurrent sentences. “Whe n a defendant alleges his appellate counsel rendered ineffective assistance b y failing to raise an issue on appeal, we examine the merits of the omitted issue. ” Cook , 45 F.3d at 392. Here, even though the sentencing court may have been alerted to the correct guideline’s-7-

requirement that the Kansas sentence run concurrent ly with the Kentucky sentence if the two convictions arose from the same transact ions or occurrences, the court did not make any findings. Consequently, had the i ssue been raised properly there would have had nothing on which the appellate courtcould base its review, and the case would have been remanded for findings purs uant to U.S.S.G. § 5G1.3 (1987). We therefore hold that defense counsel’s p erformance on direct appeal was deficient under Strickland

. We are unable to evaluate whether defense counsel’s deficient performance prejudiced defendant because a finding of whether t he Kansas offense arose from the same transactions or occurrences as the Kentucky offenses was not made either at the sentencing hearing or on consideratio n of the § 2255 motion. Therefore, we conclude that this matter should be r emanded to the district court.
See United States v. Glover , 97 F.3d 1345, 1350 (10th Cir. 1996) (critical findings not made at sentencing or on § 2255; reman ded for findings); United States v. Kissick , 69 F.3d 1048, 1057 (10th Cir. 1995), cert . denied , 117 S. Ct. 1008 (1997) (same). On remand, the district court should determine whether the Kansas offense arose from the same transactions or occurrences as the Kentucky offenses. If the court finds that the offenses did not arise from the same transactions or occurrences, then defendant suffere d no prejudice from his attorney’s failure to raise the issue, and he is no t entitled to be resentenced.-8-

If, on the other hand, the court finds that the Kan sas and Kentucky offenses arose from the same transactions or occurrences, th e court should determine whether there are grounds for an upward departure f rom the guidelines, justifying imposing the Kansas sentence consecutively to the K entucky sentence. If the court so finds, it is directed to make the necessary findings for an upward departure. Cf. United States v. Shewmaker , 936 F.2d 1124, 1127-28 (10th Cir. 1991) (considering 1989 version of U.S.S.G. § 5G1.3 ; holding that where guideline indicates the new sentence must run conse cutively, sentencing court may run new sentence concurrently if it determines that guideline departure is appropriate). Defendant is entitled to resentencin g if the district court finds that the Kansas offense arose from the same transactions or occurrences as the Kentucky offenses, and that no grounds exist for anupward departure from the sentencing guidelines that would justify imposing the Kansas sentence consecutively to the Kentucky sentence. REVERSED and REMANDED for further proceedings consi stent with this order and judgment.

Entered for the Court James K. Logan Circuit Judge