               Case: 11-10407      Date Filed: 08/16/2012    Page: 1 of 3

                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT

                            ________________________

                                  No. 11-10407
                            ________________________

                       District Court Nos. 1:09-cv-00629-CG,
                                1:06-cr-00206-CG-B-1

QUANG VAN NGUYEN,

                                                                            Movant,

                                         versus

UNITED STATES OF AMERICA,

                                                                            Respondent.

                          ___________________________

                    Appeal from the United States District Court
                       for the Southern District of Alabama
                        ____________________________
                                (August 16, 2012)

Before JORDAN and FAY, Circuit Judges, and HOOD,* District Judge.

PER CURIAM:


      *
        Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
               Case: 11-10407    Date Filed: 08/16/2012   Page: 2 of 3

        Following oral argument and a review of the record, we vacate the district

court’s order denying relief because we conclude that Mr. Nguyen is entitled to an

evidentiary hearing on his ineffective assistance of counsel claim. Given the

definition of “ice” in USSG § 2D1.1(c), Note (C) (defining “ice,” for purposes of §

2D1.1, as “a mixture or substance containing d-methamphetamine hydrochloride of

at least 80% purity”), this is not one of those cases where the “motion and the files

and records of the case show that the prisoner is entitled to no relief.” 28 U.S.C. §

2255.

        On remand, the district court shall hold an evidentiary hearing on Mr.

Nguyen’s claim that his counsel rendered ineffective assistance at sentencing by

failing to object to the methamphetamine being “ice” for purposes of § 2D1.1. At the

evidentiary hearing, Mr. Nguyen shall have the burden of showing (1) that his

counsel rendered deficient performance by failing to object, and (2) that there is a

reasonable probability that the deficient performance affected the outcome of the

sentencing hearing (i.e., that there is a reasonable probability that, had counsel

objected, the government would not have been able to establish that the

methamphetamine was “ice” under § 2D1.1(c), Note (C)).            See Strickland v.

Washington, 466 U.S. 668, 694 (1984) (defining a “reasonable probability as a

probability sufficient to undermine confidence in the outcome”). At the conclusion

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of the evidentiary hearing, the district court shall issue findings of fact and

conclusions of law and enter a new judgment granting or denying § 2255 relief.

      The district court shall appoint counsel for Mr. Nguyen pursuant to Rule 8(C)

of the Rules Governing § 2255 Motions, which provides that “[i]f an evidentiary

hearing is required, the judge shall appoint counsel for a movant who qualifies for the

appointment of counsel under 18 U.S.C. § 3006A(g)[.]” See Sheperd v. United

States, 253 F.3d 585, 587 (11th Cir. 2001). The district court may wish to consider

appointing, as Mr. Nguyen’s counsel for the evidentiary hearing, the attorney who

was court-appointed to represent Mr. Nguyen on appeal, as that attorney is now

familiar with the record.

      VACATED AND REMANDED FOR AN EVIDENTIARY HEARING.




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