                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 27 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-5130
                                                    (D.C. No. 97-CV-22-C)
    ROY GLOVER,                                          (N.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before TACHA and McKAY, Circuit Judges, and BROWN, ** Senior District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Roy Glover, proceeding pro se, appeals from the district court’s denial of

his motion to vacate, set aside or correct his sentence, filed pursuant to 28 U.S.C.

§ 2255. In an order dated July 6, 1998, this court granted Glover a certificate of

appealability on a single issue raised on appeal: his challenge of the district

court’s denial of an evidentiary hearing on the question whether the sentencing

court erred in using D-methamphetamine rather than L-methamphetamine to

establish his base offense level. We denied Glover a certificate of appealability

on all other issues raised on appeal. We also directed the government to file a

response brief on the remaining issue, specifically questioning why the case

should not be remanded to the district court for an evidentiary hearing in light of

United States v. Youngpeter, No. 97-5142, 1998 WL 171838 (10th Cir. Apr. 13,

1998). The government, in response, conceded that an evidentiary hearing should

be held “to better serve the interests of justice.” Response at 3.

      “In response to a § 2255 motion, the district court ‘must hold an evidentiary

hearing on the prisoner’s claims “[u]nless the motion and files and records of the

case conclusively show that the prisoner is entitled to no relief.”’” United States

v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (quoting United States v. Galloway,

56 F.3d 1239, 1240 n.1 (10th Cir. 1995) (quoting 28 U.S.C. § 2255)). We review


                                          -2-
the district court’s decision not to hold an evidentiary hearing for abuse of

discretion. See id. After reviewing the record on appeal, together with Glover’s

arguments and the applicable legal standards, we conclude that this appeal is

controlled by our decision in Youngpeter, and therefore agree with the

government that an evidentiary hearing is required. The district court abused its

discretion in denying Glover an evidentiary hearing by relying on the factual

findings reached in an evidentiary hearing held for one of Glover’s co-defendants,

thereby violating his rights to be present and to be represented by counsel during

the hearing. See Youngpeter, 1998 WL 171838, at **5.

      The judgment of the United States District Court for the Northern District

of Oklahoma is REVERSED, and this case is remanded to the district court for an

evidentiary hearing on the single issue whether Glover was properly sentenced on

the basis of D-methamphetamine. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Wesley E. Brown
                                                     Senior District Judge




                                         -3-
