                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-5095


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BARRY LLOYD CURTIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00016-LHT-1)


Submitted:    August 20, 2009                 Decided:   January 6, 2010


Before WILKINSON, KING, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Claire J. Rauscher, Ross H. Richardson, Erin K. Taylor, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, Charlotte, North Carolina,
for Appellant.   Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Barry Lloyd Curtis timely appeals from the fifty-seven

month sentence imposed after his guilty plea to one count of

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2006).              On appeal, Curtis contends, and the

Government       concedes,      that    trial      counsel       was    ineffective        for

failing    to    object    to    the    erroneous            Guidelines      range   in    the

Presentence Investigation Report (“PSR”).                          We affirm Curtis’s

conviction, but vacate his sentence and remand for resentencing.

             A    defendant       may     raise          a     claim    of     ineffective

assistance       of   counsel    “on     direct         appeal    if   and    only    if    it

conclusively appears from the record that his counsel did not

provide effective assistance.”                    United States v. Martinez, 136

F.3d 972, 979 (4th Cir. 1998).                To prove ineffective assistance,

the   defendant       must      show    two       things:        (1)   “that     counsel’s

representation         fell       below           an     objective           standard       of

reasonableness” and (2) “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding       would     have        been       different.”             Strickland        v.

Washington, 466 U.S. 668, 688, 694 (1984).

             We find that Curtis has conclusively shown he received

ineffective assistance of counsel.                       In the PSR, the probation

officer incorrectly stated that the applicable Guidelines range

for   an   adjusted       offense      level       of    23     and    criminal      history

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category    II    was    fifty-seven         to   seventy-one          months,     when    the

correct    Guidelines         range    is    fifty-one      to     sixty-three      months.

U.S.   Sentencing       Guidelines          Manual,   ch.     5,      pt.   A   (sentencing

table) (2007).          At sentencing, the district court accepted the

Guidelines range as calculated in the PSR and sentenced Curtis

to   fifty-seven        months’       imprisonment.           Counsel’s         failure     to

object     to    the     erroneous          Guidelines      range       was     objectively

unreasonable,      given       the    ease    with    which      counsel        should    have

spotted the error.             Further, there is a reasonable possibility

that, had counsel objected to the erroneous Guidelines range,

the district court would have sentenced Curtis at the low end of

the proper Guidelines range, which was six months less than his

current sentence.

            For        the     foregoing       reasons,          we    affirm      Curtis’s

conviction, but vacate his sentence and remand for resentencing.

We   dispense     with       oral    argument     because        the   facts     and     legal

conclusions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                       AFFIRMED IN PART,
                                                                        VACATED IN PART,
                                                                            AND REMANDED




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