UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 97-6825

JERRY LEE WATSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-92-143, CA-96-3243-6-20AK)

Submitted: May 29, 1998

Decided: June 24, 1998

Before ERVIN and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Jerry Lee Watson, Appellant Pro Se. William Corley Lucius, Assis-
tant United States Attorney, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jerry Lee Watson pled guilty to distribution of cocaine base. He did
not file a direct appeal. In his 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1998) motion filed in the district court he alleged that: (1) the
district court erred by enhancing his sentence for crack cocaine
because he only pled guilty to cocaine base; (2) he received ineffec-
tive assistance because his counsel failed to object to his sentencing
for crack; and (3) his attorney was ineffective for failing to file a
notice of appeal as requested. The district court granted the Govern-
ment's motion for summary judgment and dismissed all claims. Wat-
son appeals.

On appeal the Government has filed a motion to remand because
the district court failed to conduct an evidentiary hearing into whether
Watson actually requested that his attorney file a notice of appeal.
Rather, the district court, on the basis of competing affidavits alone,
made a factual finding that Watson did not request that his attorney
file a notice of appeal. As noted by the Government in its motion to
remand, this was error. See United States v. Peak, 992 F.2d 39, 42
(4th Cir. 1993) ("[A] criminal defense attorney's failure to file a
notice of appeal when requested by his client deprives the defendant
of his Sixth Amendment right to the assistance of counsel, notwith-
standing that the lost appeal may not have had a reasonable probabil-
ity of success."); Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir.
1990) (holding that in a habeas proceeding where material facts are
in dispute, a federal court must hold an evidentiary hearing unless
facts were resolved in a prior state hearing).

Accordingly we grant a certificate of appealability, vacate the dis-
trict court's order, grant the Government's motion to remand, and
direct the district court to conduct an evidentiary hearing consistent
with this opinion. We express no opinion regarding the propriety of
Watson's other two claims. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

VACATED AND REMANDED

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