                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-7354


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMAR SERON RANDALL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00174-MOC-1; 3:13-cv-00154-MOC)


Submitted:   January 21, 2014             Decided:   April 2, 2014


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Vacated in part and remanded by unpublished per curiam opinion.


Jamar Seron Randall, Appellant Pro Se.    William A. Brafford,
Jennifer Lynn Dillon, Melissa Louise Rikard, Jenny Grus Sugar,
Assistant United States Attorneys, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Jamar Seron Randall filed a 28 U.S.C. § 2255 (2012)

motion, contending, inter alia, that his counsel was ineffective

in advising him with regard to two plea offers and that, based

on that faulty advice, he rejected the first plea offer and

accepted the second one. *                    Randall seeks to appeal the district

court’s        order    denying         § 2255    relief.        For   the    reasons     that

follow, we grant a certificate of appealability, vacate in part

the district court’s order, and remand for further proceedings.

                A federal grand jury charged Randall with possession

of   a       firearm    by    a    convicted      felon,    in    violation      18   U.S.C.

§ 922(g)        (2012).           The    Government     offered        Randall    two     plea

agreements.            Under the original plea deal, in addition to two

levels        of   reduction            in    offense   level      for       acceptance    of

responsibility           pursuant        to    U.S.   Sentencing       Guidelines       Manual

§ 3E1.1(a) (2010), the Government would have recommended that

Randall        receive       an   additional      one-level      reduction       under    USSG


         *
       In his § 2255 motion, Randall also asserted he was denied
effective assistance of counsel with regard to a motion to
suppress.     By failing to challenge the district court’s
rejection of this claim in his informal appellate brief, Randall
has forfeited review of this issue.      See 4th Cir. R. 34(b)
(directing appealing parties to present specific arguments in an
informal brief and stating that this court’s review on appeal is
limited to the issues raised in the informal brief).




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§ 3E1.1(b).        Randall was informed that, if he did not accept the

plea deal by December 15, 2010, he would not receive the third

level of reduction.            He did not accept this plea offer.

              Randall     accepted        a    second         plea     agreement      that   was

executed on January 3, 2011.                       That agreement expressly stated

that   “[t]he      parties      agree     that         with       regard   to   acceptance    of

responsibility, a decrease of defendant’s offense level by one

additional level is not appropriate under [USSG] § 3E1.1.”                                   The

district      court      subsequently          sentenced           Randall      to   ninety-two

months’ imprisonment, the bottom of the Guidelines range.

              Randall appealed, challenging, among other issues, the

validity of his guilty plea and the district court’s denial of

his motion to withdraw his guilty plea.                            This Court affirmed the

district court on these issues and dismissed the remainder of

Randall’s     appeal      as    barred        by       the   waiver-of-appellate          rights

provision in the plea agreement.                        See United States v. Randall,

478 F. App’x 5 (4th Cir. 2012) (No. 11-5160).

              In   his    § 2255        motion,         as    relevant     to    this     appeal,

Randall    claimed       that      he    was       denied         effective     assistance    of

counsel in connection with the two plea offers.                                 Regarding the

first plea deal, Randall claimed that counsel told him he would

receive a thirty-six-month sentence if he accepted that offer

but    then    advised       him    to     reject            it    because      counsel     could

successfully move to suppress the firearm.                                 He also said his

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attorney    advised       him     to    reject   the     Government’s       plea    offer

because     he    had     a    viable     double       jeopardy    claim.         Without

counsel’s        faulty       advise,    Randall       asserted,     he    would     have

accepted    the     first       plea    offer    and    would     have    received    the

additional one-level reduction for acceptance of responsibility.

            Turning to his ineffective assistance claim concerning

the second plea offer, Randall said that his attorney conducted

the same Guidelines calculations as he had with the first offer,

but advised that the Guidelines range under the new offer would

now be forty-one to fifty-one months because Randall lost the

additional one-level reduction for acceptance of responsibility.

He claimed that counsel assured him he would still proceed with

the motion to suppress and the double jeopardy challenge, but

advised him to accept the plea to “lock the [G]overnment in” to

a particular sentence in the event that those challenges were

unsuccessful.           Randall stated that, but for counsel’s faulty

advice and misrepresentations, he would have rejected the plea

offer and proceeded to trial.

            The     district       court    denied       relief.         Citing    United

States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) (absent

compelling evidence to the contrary, “truth of sworn statements

made during a Rule 11 colloquy is conclusively established”),

the district court held that Randall’s claims were belied by his

sworn testimony at his Rule 11 hearing.                           The court rejected

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Randall’s reliance on two recent Supreme Court cases addressing

ineffective    assistance       of    counsel         during     the   plea   bargaining

process, Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri

v. Frye, 132 S. Ct. 1399 (2012), concluding that the Supreme

Court had not held that these cases established a new right that

was    retroactively     applicable         to    cases     on    collateral     review.

Furthermore, the district court held that the Fourth Circuit had

already    rejected    Randall’s        ineffective            assistance     claims    on

direct appeal.

            We conclude that the district court applied the wrong

standard in denying Randall’s claims.                   In Lafler, the Court held

that the Sixth Amendment right to counsel applies to the plea

bargaining     process    and        that    prejudice         occurs    when,    absent

deficient advice, the defendant would have accepted a plea deal

that   would   have    been   approved           by   the   court,      and   that     “the

conviction or sentence, or both, under the offer’s terms would

have been less severe than under the judgment and sentence that

in fact were imposed.”          132 S. Ct. at 1385.                Because Lafler was

the law in effect at the time Randall’s conviction became final,

the district court was bound to apply it in reviewing Randall’s

ineffective-assistance claim.

            Moreover, the district court erred in its alternative

holding that the issues raised in Randall’s § 2255 motion were

in fact litigated on direct review.                     Randall’s claim on direct

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review involved only whether his guilty plea was knowing and

voluntary      --    not   whether    his    lawyer    provided       ineffective

assistance.         Indeed, we declined on direct appeal to consider

any evidence of Randall’s counsel’s ineffectiveness not in the

record, and invited Randall to file a § 2255 motion if he wished

to make out an ineffective assistance claim.                   Randall, 478 F.

App’x at 5 n.*.

              Accordingly, we grant a certificate of appealability,

vacate the portion of the district court’s order denying relief

on Randall’s claims of ineffective assistance during the plea

bargaining      process,     and      remand     for      further     proceedings

consistent with this opinion.               We express no view as to the

merits   of    Randall’s    claims.     We     dispense    with     oral   argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                VACATED IN PART AND REMANDED




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