          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                March 26, 2008
                                No. 07-10653
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

NIKIA ALEJANDRO MITCHELL

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:06-CR-384-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Nikia Alejandro Mitchell was convicted of one count of conspiring to
distribute cocaine and to possess cocaine with intent to distribute. The district
court determined that he was a career offender and sentenced him to serve 210
months in prison and a five-year term of supervised release. Mitchell appeals
his sentence. He argues that the district court erred by classifying him as a
career offender because he does not have the requisite number of qualifying
convictions, that the district court erred during sentencing by granting him only

      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-10653

a two-level adjustment in connection with the Government’s U.S.S.G. § 5K1.1
motion, and that the district court erred by failing to properly consider the 18
U.S.C. § 3553(a) sentencing factors. As the Government properly observes, the
record reflects that Mitchell knowingly and voluntarily waived his right to
pursue these claims as part of his plea agreement. See United States v. Story,
439 F.3d 226, 231 (5th Cir. 2006); United States v. Melancon, 972 F.2d 566,
567-68 (5th Cir. 1992).     Consequently, we decline to consider them.           See
Melancon, 972 F.2d at 567-68.
      Mitchell raises one additional claim that is not precluded by his waiver of
his appellate rights. Mitchell argues that counsel rendered ineffective assistance
by failing to object to his career offender classification on the grounds that he did
not have the requisite prior convictions. We typically decline to consider claims
of ineffective assistance of counsel in direct appeals. See United States v. Miller,
406 F.3d 323, 335-36 (5th Cir. 2005). Nevertheless, this is the rare case in which
it is appropriate to consider such a claim, as the record is sufficient to permit us
to consider Mitchell’s argument. See Massaro v. United States, 538 U.S. 500, 508
(2003); United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).
      To establish ineffective assistance of counsel, Mitchell must demonstrate
both that his attorney’s performance was deficient and that the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687
(1984). Mitchell’s ineffective assistance claim has merit. Counsel could and
should have objected to the career offender designation based on United States
v. Gonzales, 484 F.3d 712 (5th Cir. 2007), which was released prior to
sentencing.    Counsel’s failure to raise such an argument was objectively
unreasonable. See Strickland, 466 U.S. at 688.
      Further, counsel’s failure to raise the Gonzales argument prejudiced
Mitchell. If Mitchell had not been classified as a career offender, his guidelines
sentencing range would have been significantly lower than the 210-month


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                                  No. 07-10653

sentence that was imposed.1 There is thus a reasonable probability that the
result of the proceedings would have been different but for counsel’s failings. See
Strickland, 466 U.S. at 694.
      Mitchell has shown both that counsel rendered a deficient performance by
failing to object to his career offender designation in accordance with Gonzales
and that this omission prejudiced him.        He has thus shown that counsel
rendered ineffective assistance in connection with his sentence. His sentence is
VACATED, and this case is REMANDED FOR RESENTENCING.
      We note that appellate counsel failed to so much as mention, much less
discuss, the existence and validity of Mitchell’s waiver of his appellate rights in
his brief to this court. Counsel is WARNED that failing to mention such a
waiver in any future brief he may file with this court could result in the
imposition of sanctions.




      1
        We offer no opinion as to what sentence Mitchell will or should receive
on remand. For purposes of the instant appeal, we need only conclude that there
is a reasonable probability that the result of the proceedings would have been
different were it not for counsel’s deficient performance. See Strickland, 466 U.S.
at 694.

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