                              NONPRECEDENTIAL DISPOSITION
                                To be cited only in accordance with
                                       Fed. R. App. P. 32.1




              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                   Argued February 29, 2012
                                    Decided March 28, 2012

                                             Before

                               WILLIAM J. BAUER, Circuit Judge

                               ILANA DIAMOND ROVNER, Circuit Judge

                               DIANE P. WOOD, Circuit Judge



No. 11-2289

ERIC BURNETT,                                     Appeal from the United States District
      Petitioner-Appellant,                       Court for the Southern District of Illinois.

       v.                                         No. 3:10-cv-00164-JPG

UNITED STATES OF AMERICA,                         J. Phil Gilbert,
     Respondent-Appellee.                         Judge.

                                              ORDER
        Eric Burnett pleaded guilty to violating conditions of his supervised release and received
an above-guidelines sentence of 50 months’ imprisonment, the maximum allowed under the
statute. No appeal followed. Burnett then brought a motion under 28 U.S.C. § 2255 alleging that
he received ineffective assistance of counsel because his attorney did not file a notice of appeal
after his hearing. The district court found that Burnett never asked his attorney to file an
appeal, and concluded that counsel’s performance was thus not deficient. But because counsel
failed to consult with Burnett about an appeal, and a rational defendant in Burnett’s position
would have wanted to appeal, we reverse.
No. 11-2289                                                                                 Page 2

                                        I. Background
        In December 2008, Burnett was out of prison on supervised release after serving 121
months for distributing crack, and another term of 10 months for violating the terms of his
supervised release. The government sought to again revoke Burnett’s supervised release
because he had allegedly possessed cocaine, submitted false information to his probation
officer, associated with convicted felons, and violated self-reporting requirements. Tamara
Thomas, Burnett’s friend, hired attorney Michael F. Jones to represent him at the revocation
hearing. Jones had not previously represented Burnett; they met for the first and only time in
a court holding cell on the day of the hearing. The meeting lasted about ten minutes.
        Burnett pleaded guilty to the allegations. His guideline sentencing range was 6-12
months. The government recommended a sentence of either 12 months’ imprisonment followed
by additional supervised release, or 36 months’ imprisonment without supervised release;
Jones argued for a 12-month prison sentence with no supervised release. The court reminded
Burnett that he had been warned that he would be sent back to prison if he violated his release
conditions, and reprimanded him for ignoring those warnings. The court then sentenced
Burnett to 50 months’ imprisonment—the maximum allowed under the statute1—and
recommended that he receive drug addiction treatment while incarcerated. The court also told
Burnett that he could appeal the sentence within 10 days , and that an attorney would be
appointed to represent him on appeal if he could not otherwise afford one. No appeal was filed.

       Burnett then filed a motion under 28 U.S.C. § 2255 challenging his sentence on the
ground that he received ineffective assistance of counsel at his revocation hearing; the motion
alleged several deficiencies in Jones’s representation, including that he failed to file a notice of
appeal. Burnett argued that he would have had a viable claim on appeal because the judge had
imposed an above-guideline sentence without, he said, offering adequate reasons as required
by 18 U.S.C. § 3553(c). He also submitted an affidavit stating that he told Jones during their
meeting in his holding cell that he would want to appeal if he received an above-guideline
sentence, and that he confirmed to Jones immediately after he was sentenced that he wanted
to appeal.
       The district court ordered an evidentiary hearing on whether Burnett told Jones to file
an appeal. Jones testified to the following: He and Burnett did not discuss an appeal during


       1
          There is a 5-year upper limit on the length of time that a defendant may be
reimprisoned on a revocation of supervised release. 18 U.S.C. § 3583(e)(3) (2000). When Burnett
was first convicted, the supervised-release statute provided that for multiple revocations, this
ceiling should apply to the aggregate of all of the terms of reimprisonment. Id.; see also United
States v. Eskridge, 445 F.3d 930, 933 (7th Cir. 2006). Here, because Burnett had already served
a 10-month prison sentence for a prior revocation, the maximum remaining sentence that he
could receive was 50 months.
No. 11-2289                                                                                  Page 3

their brief meeting before the hearing, and Burnett was taken into custody without saying
anything after the sentence was issued. After the hearing, Jones spoke outside with Thomas and
told her that Burnett had a right to appeal within 10 days. But he did not believe an appeal
would succeed, and thus would not accept any more payment to represent Burnett. He said
that if asked, he would still perform his duty to file a notice of appeal, and he suggested that
if they decided to appeal then they should file a motion to proceed in forma pauperis. Jones did
not have any notes or a file regarding the case, and although he professed a clear recollection
of everything that was said during his conversation with Burnett in the holding cell, he could
not remember certain details from the hearing, such as what sentence he requested or whether
the court had asked Burnett if Jones’s representation had been satisfactory. Jones did not
employ a secretary at that time and did not have any records of phone calls that he received,
but he said that if he had received a call then he would have returned it.
         Burnett testified that the factual allegations in his affidavit were true. He also testified
to the following: After the revocation hearing, Burnett called Thomas and asked her to contact
Jones about filing an appeal. Although her relationship with Burnett was strained by his return
to prison, Thomas told Burnett that she called Jones several times and left messages, none of
which were returned. Burnett also called Jones three times in the days following the revocation
hearing, but none of the calls went through.
         Finally, the court heard testimony from an investigator with the Federal Public
Defender’s Office, who had spoken with Thomas approximately one week before the
evidentiary hearing. The investigator testified that he had not been able to contact Thomas since
then; he speculated that she was avoiding him because she did not want to be subpoenaed to
testify. He said that when they last spoke, Thomas told him too that she had called Jones and
left several voicemail messages about filing an appeal, and Jones never called her back. The
investigator further testified that Thomas had remembered meeting briefly with Jones right
after the hearing, and that she recalled Jones saying “we’ll just have to appeal it.”
         The court found that Burnett never asked Jones to file an appeal. Nevertheless, the court
expressed some concern about Jones’s representation in the case, stating that it was
“disconcerting” that Jones did not have any notes or a file regarding the case (for which he
accepted a $1500 retainer). But the court doubted the veracity of Burnett’s testimony because
it seemed “odd” that Burnett would have called Thomas to ask her to talk to Jones about filing
an appeal if Burnett had already told Jones that he wanted to file one. The court was also
skeptical that Burnett had really told Jones immediately after he was sentenced that he wanted
to appeal because the court would have heard him and entered a notice of appeal on his behalf.
         The court then issued an order denying Burnett’s § 2255 motion. The order rejected
Burnett’s argument that Jones was ineffective for failing to file a notice of appeal based on the
court’s finding that Burnett never asked Jones to appeal his revocation judgment. The court also
found no merit to Burnett’s other complaints with Jones’s performance. Burnett appealed, and
the district court issued a certificate of appealability with respect to whether Jones provided
No. 11-2289                                                                                 Page 4

ineffective assistance for failing to file a notice of appeal after Burnett timely requested that he
do so.
        Burnett then filed in this court a motion to expand the certificate of appealability to
include other alleged bases for an ineffectiveness claim. We denied the motion as unnecessary,
explaining that an ineffective assistance claim encompasses the overall deficient performance
of counsel and not any specific failing. Our order clarified that the certificate of appealability
states a single issue: whether Burnett received ineffective assistance of counsel.

                                            II. Analysis
        Burnett first challenges the district court’s finding that he did not ask Jones to file an
appeal. To overcome a factual determination like this, he must show that the district court
committed clear error. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). Here Burnett
argues that Jones’s testimony was not credible because his recollection was inconsistent—Jones
admitted that he could not remember details such as what sentence he requested, but he
claimed he could recall, without notes, everything that Burnett said to him. But the district
court had reasons for doubting Burnett’s testimony too. The court was right that it is illogical
to believe that Burnett would ask Thomas to talk to Jones about filing an appeal if he had really
already told Jones himself that he wanted to file one. And the court reasonably doubted that
Burnett had requested an appeal while he was still in the courtroom because nobody overheard
him. Thus we accept the district court’s finding that Burnett did not ask Jones to file an appeal
because Burnett has not made a “definite and firm” showing that the court’s resolution of the
conflicting testimony was a mistake, or clear error. See United States v. McGraw, 571 F.3d 624,
629 (7th Cir. 2009).
        Burnett next argues that he received ineffective assistance because Jones failed to consult
with him about filing an appeal before the time to file one expired. A threshold question is
whether Burnett may raise this argument on appeal because, the government says, he did not
raise the claim in the district court. See Domka v. Portage County, 523 F.3d 776, 783-84 (7th Cir.
2008) (we will generally not consider new arguments on appeal). The government is correct that
Burnett’s original § 2255 motion did not explicitly argue that Jones was ineffective for failing
to consult about an appeal. But the argument is not new. Burnett’s claim that Jones was
ineffective for failing to file an appeal implicitly raises a claim for failure to consult:
        [T]he question whether counsel has performed deficiently by not filing a notice
        of appeal is best answered by first asking a separate, but antecedent, question:
        whether counsel in fact consulted with the defendant about an appeal. . . . If
        counsel has not consulted with the defendant, the court must in turn ask a
        second, and subsidiary, question: whether counsel’s failure to consult with the
        defendant itself constitutes deficient performance.
Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000) (emphasis added).
        Even if Burnett’s failure-to-consult argument were new, he would still be allowed to
raise it on appeal because it is a direct response to the district court’s opinion. See Wiese v.
No. 11-2289                                                                                   Page 5

Community Bank of Cent. Wis., 552 F.3d 584, 591 (7th Cir. 2009) (“[T]he Bank did introduce new
arguments on appeal, but they were made directly in response to the district court’s opinion,
which went a step beyond what either party had argued . . .”). Burnett’s original claim was that
Jones should have filed an appeal after Burnett asked him to do so; it would have been
contradictory for him to also argue a failure-to-consult claim. But, after the district court found
that there was no consultation between Burnett and Jones regarding an appeal, it was
reasonable for Burnett to respond by arguing that the findings of the district court still support
a claim for ineffective assistance. Burnett did not forfeit review of his argument that Jones
had—and breached—a duty to consult with him during the time to file an appeal. Id.
          Because Jones admitted that he never consulted Burnett about an appeal, the next issue
is whether he had a duty to do so. Flores-Ortega, 528 U.S. at 479-80. We conclude that he did.
Flores-Ortega imposes a duty to consult if a rational defendant would have wanted to appeal.
Id.; see also Bednarski v. United States, 481 F.3d 530, 536 (7th Cir. 2007). A rational defendant like
Burnett, who pleaded guilty, would almost certainly want to appeal his statutory maximum
sentence because he gained nothing in exchange for giving up his right to a trial, see Flores-
Ortega, 528 U.S. at 481, particularly where nonfrivolous grounds for an appeal exist. Id. at 480.
          Here Burnett identifies two potential claims to argue on appeal, both of which are
nonfrivolous. First, he contends that the district court did not use the guidelines range as a
starting point for calculating his sentence. See United States v. Kirkpatrick, 589 F.3d 414, 416 (7th
Cir. 2009). This claim has some arguable merit—the district court only mentioned the advisory
range once, at the beginning of the hearing, and it was not connected to the court’s explanation
of Burnett’s sentence. Id. Second, Burnett argues that the district court did not give adequate
justification based on the factors in § 3553(a) for imposing a sentence more than four times
longer than the top of the guideline range. See Gall v. United States, 552 U.S. 38, 46 (2007). And,
in fact, the court offered hardly any explanation for Burnett’s sentence besides expressing hope
that Burnett would be helped by prison drug treatment, which is not an appropriate fact for a
sentencing court to consider according to 18 U.S.C. § 3582(a). Tapia v. United States, 131 S. Ct.
2382, 2391 (2011).
          The government replies that these potential claims would be frivolous in the context of
a revocation sentence, which is reviewed under a more-deferential “plainly unreasonable”
standard. United States v. Kiezeart, 505 F.3d 672, 674 (7th Cir. 2007). But the practical difference
between that standard and the standard for reviewing direct sentences is “slight, perhaps even
nil.” Id. And we will still reverse a revocation sentence if the district court did not use the
guidelines as a starting point or failed to adequately justify the sentence based on § 3553(a). See,
e.g., United States v. Robertson, 648 F.3d 858, 859-60 (7th Cir. 2011); United States v. Snyder, 635
F.3d 956, 961 (7th Cir. 2011).
           The government further argues that the district court’s explanation to Burnett of his
appeal rights was an adequate substitute for consultation with counsel, thereby relieving Jones
of his duty to consult. See Flores-Ortega, 528 U.S. at 481-82. But consultation requires “advising
the defendant about the advantages and disadvantages of taking an appeal, and making a
No. 11-2289                                                                                 Page 6

reasonable effort to discover the defendant’s wishes.” Id. at 479. Here the court’s brief statement
to Burnett (that he had 10 days to appeal and could be appointed a lawyer if he was unable to
afford one) did not advise Burnett about the pros and cons of appealing, and was thus not
sufficiently informative to substitute for the consultation that Jones had a duty to provide. Id.
at 482.
        Lastly, the government asserts that Jones did not have a duty to consult Burnett about
an appeal because Burnett pleaded guilty, which indicated that he was seeking an end to the
proceedings. See id. at 481. But Flores-Ortega itself was in the context of an attorney’s failure to
consult about an appeal following a guilty plea. Id. at 489 (Breyer, J., concurring). And it would
be unreasonable to infer that a defendant who pleaded guilty did not want to appeal when, like
here, the defendant received the maximum possible sentence, far above the upper limit of the
guideline range, and thus gained nothing in exchange for the plea. See id. at 481.
        The remaining question is whether Burnett suffered prejudice as a result of Jones’s
breach of his duty to consult with Burnett about an appeal. To show prejudice, Burnett must
demonstrate that there is a reasonable probability that, but for Jones’s failure to consult with
him, he would have timely appealed. Id. at 485. Burnett has made that showing by identifying
nonfrivolous grounds for appeal based on the district court’s potential misapplication of the
sentencing guidelines and § 3553(a). See id. at 486.
        Burnett finally argues that Jones rendered ineffective assistance because he did not
remain available during the time to file an appeal. See Corral v. United States, 498 F.3d 470, 474-
75 (7th Cir. 2007). We need not decide this issue because we have concluded that Burnett
should prevail on his failure-to-consult claim.

                                          III. Conclusion
        Because counsel rendered ineffective assistance by failing to consult with Burnett about
filing an appeal, the district court's judgment is REVERSED and the case is REMANDED for
the entry of an order granting Burnett’s motion, and reinstating his time to file an appeal from
the revocation of his supervised release.
