UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-6012

ELVIN FLORIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-93-62, CA-97-123-4-BO)

Submitted: May 29, 1998

Decided: July 10, 1998

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Dismissed in part, vacated in part, and remanded by unpublished per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

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COUNSEL

Elvin Floris, Appellant Pro Se. Barbara Dickerson Kocher, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Elvin Floris appeals from district court orders denying
his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion and deny-
ing reconsideration of that order. We grant a certificate of appeala-
bility as to whether Floris was deprived of effective assistance of
appellate counsel in violation of the Sixth Amendment when his
appellate counsel did not challenge the district court's failure to
inform him at the plea hearing of the mandatory minimum or maxi-
mum term of supervised release. We also vacate that portion of the
district court's order denying relief on this issue and remand for the
court to consider its merits. We deny a certificate of appealability and
dismiss the appeal in all other respects.

As an initial matter, we find the district court erred in denying
Floris's § 2255 motion on the basis that he had waived "all right to
contest a conviction or sentence in any post-conviction proceeding."
Floris entered into a plea agreement in which he agreed to plead
guilty to one count of distributing crack cocaine in violation of 21
U.S.C.A. § 841 (West 1981 & Supp. 1998). The plea agreement
stated that Floris "waive[d] all rights to contest the conviction or sen-
tence in any post-conviction proceeding, including one pursuant to 28
U.S.C.A. § 2255, excepting [his] right to appeal based upon ineffec-
tive assistance of counsel or prosecutorial misconduct not known to
the Defendant at the time of the Defendant's guilty plea." This provi-
sion was repeated by the court during the plea hearing. Thus, accord-
ing to the terms of the plea agreement, Floris is not barred from
raising certain ineffective assistance of counsel claims in a § 2255
motion.

We find that Floris's claim that he was denied effective assistance
of appellate counsel because appellate counsel did not challenge the
court's failure to inform him of the appropriate term of supervised

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release merits review by the district court. At the plea hearing, Floris
was informed by the court that the term of imprisonment was "up to
twenty years" and the term of supervised release was "up to three
years." (R. Vol. 3 at 6). According to § 841(b)(1)(C), Floris actually
faced "a term of supervised release of at least 3 years in addition to
such term of imprisonment." The court sentenced Floris to the maxi-
mum twenty years' imprisonment and five years' supervised release,
or two years more than the maximum penalty of which he was
informed. See United States v. Good, 25 F.3d 218, 220 (4th Cir. 1994)
(the error is not harmless if the combined sentence of incarceration
and supervised release received exceeded the maximum term the
defendant was told he could receive).

Under Fed. R. Crim. P. 11(c)(1), a court must inform the defendant
of the mandatory minimum penalty and the maximum penalty before
accepting a guilty plea. This Court has held that under certain circum-
stances, the failure to inform the defendant of the mandatory mini-
mum penalty could result in error requiring either the plea to be
vacated or the sentencing court to be provided with an opportunity to
modify the sentence. See United States v. Goins , 51 F.3d 400 (4th Cir.
1995); Moore v. United States, 592 F.2d 753, 756 (4th Cir. 1979).

Appellate counsel might have been successful with this issue on
appeal, if the error was not found to be harmless. See Goins, 51 F.3d
at 402 (Rule 11 violations reviewed for harmless error). There is
insufficient evidence before this Court to determine whether the error
is harmless. Defense counsel's affidavit stating that it was his good
faith belief that Floris knew of the maximum and minimum term of
supervised release is called into doubt by the handwritten change in
the plea agreement signed by Floris, defense counsel, and the prose-
cutor stating that the maximum term of supervised release was three
years. Furthermore, the only document which mentioned the correct
term of supervised release, the presentence report, cannot cure a Rule
11 violation. See Goins, 51 F.3d at 404.

We find no merit to the remaining issues raised by Floris. He failed
to show that his counsels' performance was deficient or that he was
prejudiced by counsels' conduct with regard to the remaining issues.
See Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Smith v. Dixon, 14
F.3d 956, 981 (4th Cir. 1994); United States v. Burkley, 511 F.2d 47,

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51 (4th Cir. 1975). Challenging the court's finding regarding the
amount of crack cocaine attributable to Floris would have been futile
since this court found the court's findings to be"clear and adequate."
United States v. Floris, No. 94-5884 (4th Cir. Feb. 29, 1996) (unpub-
lished), cert. denied, ___ U.S. #6D 6D6D#, 65 U.S.L.W. 3259 (U.S. Oct. 7,
1996) (No. 95-9143). Finally, Floris was not prejudiced by trial coun-
sel's advice because his sentence would have remained the same even
if Floris received a reduction in the offense level due to acceptance
of responsibility.

We therefore grant a certificate of appealability as to whether
Floris was deprived of effective assistance of appellate counsel in vio-
lation of the Sixth Amendment when his appellate counsel did not
challenge the district court's failure to inform him at the plea hearing
of the mandatory minimum or maximum terms of supervised release.
We also vacate that part of the district court's orders granting sum-
mary judgment and denying Floris's motion under Fed. R. Civ. P.
59(e) on this issue and remand for the court's consideration of this
issue on the merits. We deny a certificate of appealability and dismiss
the appeal from the court's orders in all other respects.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

DISMISSED IN PART, VACATED
IN PART, AND REMANDED

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