          IN THE UNITED STATES COURT OF APPEALS Court of Appeals
                                          United States
                   FOR THE FIFTH CIRCUIT           Fifth Circuit
                                                                    F I L E D
                                                                   September 20, 2007
                                No. 05-10895
                              Summary Calendar
                                                                 Charles R. Fulbruge III
                                                                         Clerk

UNITED STATES OF AMERICA
                                           Plaintiff-Appellee

v.


DAVID MICHAEL SHEID
                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:03-CR-336-2


Before REAVLEY, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:*
      David Michael Sheid, Texas prisoner No. 60673, appeals the summary
dismissal of a 28 U.S.C. § 2255 motion, filed under penalty of perjury,
challenging Sheid’s 180-month sentence for conspiracy to manufacture and
distribute methamphetamine. At sentencing, without objection, the district
court ordered that Sheid serve his federal sentence consecutively to future Texas
sentences that might be imposed on revocation of Sheid’s probation in Palo Pinto
County case No. 09355 and in Parker County case No. 10954. Sheid’s appointed


      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
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trial attorney did not file a direct appeal or a motion to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967).
      Sheid argued in the district court (1) that his appointed counsel was
ineffective for failing to argue at sentencing for a concurrent or partially
concurrent sentence pursuant to U.S.S.G. § 5G1.3(c) and (2) that counsel was
ineffective for failing to appeal the consecutive sentence. The district court
summarily dismissed the motion on the ground that § 5G1.3(c) did not apply to
Sheid’s sentence; thus, the court concluded that counsel could not have been
ineffective for failing to make a frivolous objection. The court did not address
Sheid’s claim that appointed counsel failed to file a direct appeal.
      We granted Sheid a certificate of appealability on the issue whether the
district court erred in summarily dismissing his claims that counsel was
ineffective for failing to argue at sentencing for a concurrent or partially
concurrent sentence and for failing to challenge the consecutive federal sentence
on direct appeal. United States v. Sheid, No. 1105-10895 (5th Cir. Dec. 12,
2006).
      A § 2255 motion should be dismissed “if it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings that the moving party
is not entitled to relief.” Rule 4(b), Rules Governing Section 2255 Proceedings.
We review for abuse of discretion the denial of an evidentiary hearing to
evaluate a §2255 movant’s claims of ineffective counsel. United States v.
Cervantes, 132 F.3d 1106, 1109-10 (5th Cir. 1998). A hearing is required on
§ 2255 review unless the “motions, files, and records of the case conclusively
show that the prisoner is entitled to no relief.” United States v. Bartholomew,
974 F.2d 39, 41 (5th Cir. 1992).
      Section 5G1.3(c) addresses whether a consecutive or concurrent sentence
should be imposed in certain situations when the defendant being sentenced is
subject to a prior undischarged term of imprisonment.          § 5G1.3(c).   The
Sentencing Guidelines were amended effective November 1, 2003, to give the

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district court the discretion whether to impose a consecutive or concurrent
sentence pursuant to § 5G1.3(c). United States v. Huff, 370 F.3d 454, 464-66
(5th Cir. 2004); see also United States v. Perez, 225 F. App’x 241 (5th Cir. 2007).
Although Sheid was sentenced in July 2004, it is not clear from the record that
the district court was aware that the recent amendments to § 5G1.3(c) made
Sheid eligible for a concurrent or partially concurrent sentence.
      The district court held that summary dismissal was proper because Huff
dictates that § 5G1.3(c) applies only “where the defendant was on parole when
the federal offense occurred and his parole was revoked prior to the federal
sentencing.” (emphasis in original). To the contrary, Huff does not hold that
§ 5G1.3(c) applies only in cases where a defendant’s parole has been revoked
prior to his federal sentencing. See Huff, 370 F.3d at 463-66. Section 5G1.3(c),
by its terms, applies “[i]n any other case involving an undischarged term of
imprisonment,” not only to cases in which parole has been previously revoked.
Accordingly, the district court erred in holding that § 5G1.3(c) is inapplicable
because Sheid’s state parole had not been revoked at the time of his federal
sentencing. Furthermore, the district court’s stated basis for denying § 2255
relief is inconsistent with the judgment of conviction. The district court denied
§ 2255 relief on the ground that, because § 5G1.3(c) did not apply to Sheid’s
sentence, counsel could not have been ineffective for having failed to make a
frivolous objection; however, the judgment of conviction imposing the consecutive
federal sentence specifically cites § 5G1.3(c).
      Sheid also argues that his counsel rendered ineffective assistance by
failing to appeal the consecutive sentence as requested. A failure to file a
requested notice of appeal is ineffective assistance of counsel even without a
showing that the appeal would have merit. Roe v. Flores-Ortega, 528 U.S. 470,
477, 486 (2000); see also United States v. Tapp, 491 F.3d 263, 266 (5th Cir.
2007)(“[I]f the petitioner is able to demonstrate by a preponderance of the
evidence that he requested an appeal, prejudice will be presumed and the

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petitioner will be entitled to file an out-of-time appeal, regardless of whether he
is able to identify any arguably meritorious grounds for appeal.”). Because the
record in the instant case does not conclusively show whether and when Sheid
requested that his counsel file an appeal, an evidentiary hearing is necessary.
See Tapp, 491 F.3d at 266.
      The summary dismissal of Sheid’s § 2255 motion is vacated and the case
is remanded for an evidentiary hearing on the issues whether counsel was
ineffective for failing to argue at sentencing for a concurrent or partially
concurrent sentence pursuant to U.S.S.G. § 5G1.3(c) and for failing to challenge
the sentence on direct appeal.
      VACATED AND REMANDED FOR AN EVIDENTIARY HEARING.




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