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United States Court of Appeals
Fifth Circuit.
No. 93-8786.
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Joe Clinton SEGLER, Defendant-Appellant.
Nov. 14, 1994.
Appeal from the United States District Court for the Western
District of Texas.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant Joe Clinton Segler pled guilty to manufacturing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1988), and
to being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). Segler was sentenced to 300-month term of
imprisonment and fined $30,000. On direct appeal, we upheld
Segler's conviction and sentence in an unpublished opinion. United
States v. Segler, No. 89-1588, 896 F.2d 550 (Table) (5th Cir. Jan.
31, 1990). Segler, proceeding pro se, now appeals an order of the
district court denying his motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. We affirm.
I
"Relief under 28 U.S.C. § 2255 is reserved for transgressions
of constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice." United States v.
1

Vaughn, 955 F.2d 367, 368 (5th Cir.1992). Moreover, a defendant
"may not raise an issue [constitutional or jurisdictional in
nature] for the first time on collateral review without showing
both "cause' for his procedural default, and "actual prejudice'
resulting from the error." United States v. Shaid, 937 F.2d 228,
232 (5th Cir.1991) (en banc) (citation omitted), cert. denied, ---
U.S. ----, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). "If the error is
not of constitutional or jurisdictional magnitude, the defendant
must show the error would result in a complete miscarriage of
justice." Id. at 232 n. 7.
II
A
Segler first contends the district court erred in sentencing
him for manufacturing a Schedule II controlled substance because
methamphetamine was not properly transferred under 21 U.S.C. § 811
from a Schedule III to a Schedule II controlled substance.1
Assuming arguendo that this is an issue of sufficient
constitutional magnitude to warrant raising on collateral attack,
we previously have held that the transfer of methamphetamine from
Schedule III to Schedule II satisfied the requirements of § 811.
See United States v. Branch, 980 F.2d 1445 (5th Cir.1992); see
121 U.S.C. § 812 establishes "five schedules of controlled
substances, to be known as schedules I, II, III, IV, and V." 21
U.S.C. § 812(a). Section 811 provides that the Attorney General
may "transfer between such schedules any drug or other substance
if [s]he ... finds that such drug or other substance has a
potential for abuse, and ... makes with respect to such drug or
other substance the findings prescribed by subsection (b) of
section 812 ... for the schedule in which such drug is to be
placed...." Id. § 811(a).
2

also United States v. Greenwood, 974 F.2d 1449, 1472 (5th Cir.1992)
("Since the early 1970s, as a matter of law, methamphetamine has
been classified as a schedule II controlled substance."); United
States v. Allison, 953 F.2d 870 (5th Cir.) (holding rescheduling of
methamphetamine from Schedule III to Schedule II had been properly
accomplished), cert. denied, --- U.S. ----, 112 S.Ct. 2319, 119
L.Ed.2d 238 (1992). Consequently, we reject Segler's first claim
of error.
B
Segler next contends that the district court misapplied the
Sentencing Guidelines in sentencing him as a career offender.2 A
district court's technical application of the Guidelines does not
give rise to a constitutional issue cognizable under § 2255.
Vaughn, 955 F.2d at 368. Applying the § 4B1.1 criteria to
determine whether to sentence as a career offender does not
implicate any constitutional issues. United States v. Faubion, 19
F.3d 226, 233 (5th Cir.1994). Moreover, this claim could have been
raised on direct appeal. See Vaughn, 955 F.2d at 368 (a
nonconstitutional claim that could have been raised on direct
appeal, but was not, may not be raised in a collateral proceeding).
Accordingly, Segler is not entitled to § 2255 relief.
C
Segler next alleges that the district court erred in
2United States Sentencing Commission, Guidelines Manual, §
4B1.1 (Nov. 1989) (noting that a defendant is a career offender
if he has three felony convictions of either a crime of violence
or a controlled substances offense).
3

calculating his base offense level by including the entire 8.5
gallons of acetone seized by police officers.3 We considered, and
rejected, this issue on direct appeal. See Segler, slip op. at 4-
5. Therefore, we need not reconsider this argument on § 2255
review. United States v. Kalish, 780 F.2d 506, 508 (5th Cir.),
cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986).
Segler also argues that we should reduce his sentence because
a recent amendment to the Sentencing Guidelines makes clear that
the district court should not have calculated his base offense
level using the entire quantity of acetone.4 Segler contends that
Amendment 484 was to be retroactively applied and, consequently,
the sentence imposed was illegal. See U.S.S.G. § 1B1.10(d) (noting
that amendment 484 is to be applied retroactively). However, under
the law in effect at the time of sentencing, the district court
correctly included the total weight of the solution seized in
determining base level. See United States v. Sherrod, 964 F.2d
1501, 1509 (5th Cir.1992); Baker, 883 F.2d at 15. Moreover, this
very claim was rejected on appeal. Segler, slip op. at 4-5.
Because reconsidering an issue raised on direct appeal is beyond
3The acetone, which is used to clean the methamphetamine,
contained detectable amounts of the drug. Under the law in
effect at the time of sentencing, a defendant's base offense
level was determined by reference to the total weight of the
mixture in which an illegal substance was found. See United
States v. Baker, 883 F.2d 13 (5th Cir.1989).
4This amendment, which became effective in November 1993,
expressly provides that "mixture or substance" as used in § 2D1.1
"does not include materials that must be separated from the
controlled substance before the controlled substance can be
used." U.S.S.G.App.C. amend. 484 (Nov. 1993).
4

the narrow scope of § 2255 review, Kalish, 780 F.2d at 508, we
decline to consider the merits here. We note, however, that Segler
is not barred from raising the issue in a motion pursuant to 18
U.S.C. § 3582(c)(2).5 See U.S.S.G. § 1B1.10; United States v.
Towe, 26 F.3d 614, 616 (5th Cir.1994) (holding that a defendant may
seek a reduction under § 3582(c) where the applicable guideline
range has been lowered as a result of a retroactive amendment).
D
Segler claims that the district court incorrectly adjusted
his base offense level upward two points for possessing a firearm
while manufacturing methamphetamine.6 He argues that this upward
adjustment, when combined with the sentence he received for being
a felon in possession of a firearm, constitutes double jeopardy.
518 U.S.C. § 3582(c) provides:
(c) Modification of an imposed term of
imprisonment.--The court may not modify a term of
imprisonment once it has been imposed except that--
(2) in the case of a defendant who has been
sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by
the Sentencing Commission pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the
Bureau of Prisons, or on its own motion, the court may
reduce the term of imprisonment, after considering the
factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent
with applicable policy statements issued by the
Sentencing Commission.
18 U.S.C.A. § 3582(c) (West Supp.1994).
6Section 2D1.1(b)(1) of the guideline directs the district
court to increase a defendant's base offense level by two "[i]f a
dangerous weapon (including a firearm) was possessed during the
commission of the offense."
5

He also argues that the district court erred in not grouping the
methamphetamine and firearms counts as "related conduct offenses"
pursuant to § 3D1.1.7 Assuming arguendo that these claims are
cognizable on collateral review, we find both to be without merit.
Segler's double jeopardy argument " "misperceives the
distinction between a sentence and a sentence enhancement.' "
United States v. Ainsworth, 932 F.2d 358, 363 (5th Cir.) (quoting
United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989)), cert.
denied, --- U.S. ----, 112 S.Ct. 346, 116 L.Ed.2d 286 (1991). The
danger of violence increases when firearms are present during
drug-related crimes. Sentence enhancement for firearms possession
seeks to discourage drug traffickers from possessing firearms.
U.S.S.G. § 2D1.1, comment. (n. 3). The record reflects that loaded
firearms were found at defendant's residence, where the drug
laboratory was located. Because Segler does not claim that the
firearms at issue were not connected to the offense, the district
court did not err by increasing Segler's offense level after
finding that he possessed the firearms during the commission of a
drug offense. U.S.S.G. § 2D1.1(b)(1); see also United States v.
7Section 3D1.2 provides:
All counts involving substantially the same harm shall
be grouped together into a single Group.... Counts
involving the same harm within the meaning of this
rule:
....
(c) When one of the counts embodies conduct that is
treated as a specific offense characteristic in, or
other adjustment to, the guideline applicable to
another of the counts.
6

Hewin, 877 F.2d 3, 5 (5th Cir.1989) (noting that the offense level
should be increased "unless it is clearly improbable that the
weapon was connected with the offense') (citation omitted).
Accordingly, there was no violation of Segler's double jeopardy
rights. Ainsworth, 932 F.2d at 363.
Likewise, there is no merit to Segler's claim that the
district court failed to "group" the two counts for sentencing
under § 3D1.1. Segler misunderstands the calculation of his
sentence. The district court did group the counts, pursuant to §
3D1.2(c).8 However, because the resulting guideline range--360
months to life--was greater than the statutorily authorized maximum
sentence for the methamphetamine count--240 months--the statutory
maximum penalty controlled. See U.S.S.G. § 5G1.1. Consequently,
§ 5G1.2 required the district court to impose consecutive sentences
for the methamphetamine count and the firearm count.9 As Segler
recognized, the district court imposed the statutory maximum
penalty of 60 months for the unlawful possession of a firearm in an
attempt to impose a sentence within the guideline range.
8The Presentence Report ("PSR") noted that the offense,
possession of a firearm by a felon, embodies conduct that is
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to count two and
"grouped", pursuant to § 3D1.2(c).
9U.S.S.G. § 5G1.2(d) provides, in relevant part:
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed in one or more of
the other counts shall run consecutively, but only to
the extent necessary to produce a combined sentence
equal to the total punishment.
7

Therefore, the district court accurately applied the guidelines
with respect to sentencing for "closely related" counts.
E
Segler also alleges that the district court erred in imposing
a $30,000 fine without making specific findings regarding his
ability to pay. The "propriety of a fine is a matter relative to
sentencing and should have been raised on direct appeal and not for
the first time in a § 2255 proceeding." United States v. Davis,
No. 93-8131, slip op. at 1-2, 8 F.3d 23 (Table) (5th Cir. October
29, 1993). Moreover, even assuming arguendo that his challenge
comes under § 2255,10 his claim lacks merit. While Segler correctly
identifies the various factors to be considered, see 18 U.S.C. §
3572(a) and U.S.S.G. § 5E1.2, the district court need not make
express findings regarding these factors. United States v.
Matovsky, 935 F.2d 719, 722 (5th Cir.1991) ("[T]he guidelines set
forth no requirement that the district court make express findings
[demonstrating consideration of the factors in § 5E1.2], and we
decline to create one.").
F
Lastly, Segler alleges ineffective assistance of counsel.
Segler specifically contends that he received ineffective
assistance during sentencing and on direct appeal because counsel
failed to challenge: (1) the district court's categorization of
him as career offender; (2) the two point enhancement for weapons
possession pursuant to U.S.S.G. § 2D1.1(b)(1); and (3) imposition
10See Part II.F.iii.
8

of the $30,000 fine.
A claim that counsel has rendered ineffective assistance will
succeed only if the defendant proves that such counsel was not only
objectively deficient, but also that the defendant was thereby
prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984). Additionally, there must be a
"reasonable probability that but for trial counsel's errors the
defendant's non-capital sentence would have been significantly less
harsh." Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.1993).
Accordingly, a court must consider such factors as the defendant's
actual sentence, the potential minimum and maximum sentences that
could have been received, the placement of the actual sentence
within the range of potential sentences, and any relevant
mitigating or aggravating circumstances. Id.
i
Segler first submits that counsel was deficient in not
challenging the district court's determination that he was a career
offender. Defendant asserts that his two prior convictions for
drug possession fail to qualify as "controlled substance offenses"
for purposes of U.S.S.G. § 4B1.1.11 Categorization as a career
offender placed Segler in criminal history category VI. According
to Segler, however, his criminal history warranted placement in
category IV. We need not reach the merits of Segler's contention
11Under U.S.S.G. § 4B1.2(2), which defines "controlled
substance offense," prior convictions of possession without
intent to manufacture, import, export, distribute, or dispense
are not controlled substances offenses.
9

that he was not a career offender because Segler has failed to
satisfy the second prong of the Strickland standard. Segler's
offense level of 40 resulted in an imprisonment range of 360 months
to life, regardless of whether his criminal history category was IV
or VI.12 Because the same guideline range would have resulted in
the absence of Segler's categorization as a career offender, no
prejudice resulted from counsel's failure to raise the career
offender issue. Accordingly, we reject this portion of Segler's
ineffective-assistance claim.
ii
Segler further contends that counsel was ineffective for
failing to challenge the enhancement for weapons possession at
sentencing and on direct appeal. In fact, counsel did object to
the two points at the sentencing hearing but the district court
overruled his objection. Additionally, an upward adjustment was
directed by the Guidelines. See supra part II.E. Therefore, we
find that counsel's failure to challenge this issue again on direct
appeal was not "deficient." See Strickland, 466 U.S. at 688, 104
S.Ct. at 2064.
iii
Finally, Segler alleges that counsel's failure to challenge
on appeal the district court's imposition of a $30,000 fine
constitutes ineffective assistance. We do not reach the merits of
12The Sentencing Table contained in the Guidelines Manual at
Chapter Five, Part A, determines the applicable range for
sentencing according to one's offense level and criminal history
category.
10

this claim because we conclude it lies outside the scope of 28
U.S.C. § 2255.
The plain language of § 2255 provides only prisoners who claim
a right to be released from custody an avenue to challenge their
sentences: "A prisoner in custody under sentence of a [federal]
court claiming the right to be released ... may move the court
which imposed the sentence to vacate, set aside or correct the
sentence." 28 U.S.C. § 2255. However, "[a] monetary fine is not
a sufficient restraint on liberty to meet the "in custody'
requirement for § 2255 purposes." United States v. Michaud, 901
F.2d 5, 7 (1st Cir.1990); accord Spring v. Caldwell, 692 F.2d 994,
999 (5th Cir.1982) ("arrest warrant issued for willful refusal to
pay a fine does not amount to custody within the meaning of 28
U.S.C. §§ 2241 and 2254 in habeas cases challenging the
constitutionality of a statute that only imposes a fine").
Segler's status as a federal prisoner brings him clearly
within the class of petitioners described in § 2255. However, his
ineffective assistance of counsel claim relating to his fine raises
the question whether his claim arises under § 2255. We conclude
that § 2255's limitation on who may seek release from federal
custody also implies a limitation on the claims they may assert to
obtain a release. Because Congress limited relief under § 2255 to
persons in federal custody, we hold that Congress also meant to
limit the types of claims cognizable under § 2255 to claims
relating to unlawful custody.
Segler challenges his counsel's failure to appeal the
11

imposition of a $30,000 fine. Under Strickland, Segler must show:
(1) that his counsel's performance was "deficient"; and (2) that
counsel's deficient performance prejudiced him. See id., 466 U.S.
at 687, 104 S.Ct. at 2064; Spriggs v. Collins, 993 F.2d 85, 87
(5th Cir.1993). We hold that when a prisoner asserts an
ineffective assistance of counsel claim under § 2255, he must
satisfy Strickland's prejudice requirement by showing harm that
relates to his custody. That is, if counsel's constitutionally
insufficient assistance affected the trial court's guilt
determination or the sentencer's imposition of a prison term, a
prisoner's ineffective assistance of counsel claim falls within the
scope of § 2255; if, as here, it relates only to the imposition of
a fine, his claim falls outside § 2255.13
This interpretation of Strickland's prejudice requirement in
the habeas context promotes even-handed treatment of similar Sixth
Amendment claims. A convicted defendant who receives an allegedly
erroneous fine because of constitutionally inadequate assistance of
counsel cannot seek post-conviction relief under § 2255, see
Michaud, 901 F.2d at 7, and neither should a petitioner who is both
fined and imprisoned have an opportunity to assert an identical
fine-related claim under § 2255. Our reading of the plain language
of § 2255 suggests no reason why Congress would have intended to
treat these two identical ineffective assistance of counsel claims
13We note that Segler's release from federal custody is not
conditioned on his payment of the fine. We do not reach the
question of whether such a sentence would bring his fine-related
Sixth Amendment claim within § 2255.
12

differently.
We are aware of at least one case in which a Court of Appeals
implied that § 2255 was a proper avenue to assert an ineffective
assistance of counsel claim relating to the imposition of a fine.
In Vela-Fossas v. United States, 1990 WL 443937, at *2 (1st Cir.
Sept. 7, 1990), the petitioner "claimed that due to ineffective
assistance of counsel ... [he] received a more onerous restitution
obligation and greater fine than he should have in the first
place." The district court dismissed the claims "on the apparent
basis that petitioner's sole proper remedy was under 18 U.S.C. §
3569 and related regulations," which provided indigent prisoners
with a remedy to avoid continuing confinement for failure to pay a
"stand committed fine." Id. The Court of Appeals held that the
district court erred by dismissing the claims on this basis. The
court then concluded that the error was harmless because all of the
claims lacked merit. Id. at *3. To the extent the First Circuit's
approach in Vela-Fossas is inconsistent with our holding here, we
decline to follow its reasoning.
III
For the foregoing reasons, we AFFIRM.
* * * * * *

13