United States v. Kimler

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84536, 48 F.3d 532 (5th Cir. Feb. 17, 1995) (unpublished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).

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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.

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