                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT            FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                    No. 04-11634                        JUNE 29, 2005
                              ________________________                THOMAS K. KAHN
                                                                          CLERK
                         D. C. Docket No. 02-20611-CR-ASG

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                           versus

BENSON CADET,

                                                                    Defendant-Appellant.
                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                     (June 29, 2005)

Before DUBINA and WILSON, Circuit Judges, and LAWSON*, District Judge.

PER CURIAM:

       Defendant Benson Cadet (“Cadet”) appeals his convictions and sentence

_______________________

       *Honorable Hugh Lawson, United States District Judge for the Middle District of
Georgia, sitting by designation.
for possession with intent to distribute five grams or more of cocaine base and a

detectable amount of marijuana, and possession of a firearm in furtherance of a

drug trafficking crime. Specifically, Cadet appeals: (1) the district court’s denial of

his motion to suppress the items seized during the warrantless search of his home

and the subsequent warranted search of his home and an automobile parked

adjacent to his home; (2) the district court’s denial of his motion for judgment of

acquittal; (3) the district court’s enhancement of Cadet’s sentence based on an

alleged prior state court conviction; and (4) the district court’s enhancement of

Cadet’s sentence for obstruction of justice based on conduct that was not charged

in the indictment or proved to the jury in violation of Blakely v. Washington, 542

U.S. __, 124 S. Ct. 2531 (2004), and now United States v. Booker, 543 U.S. __,

125 S. Ct. 738 (2005).

       After oral argument and a thorough review of the parties’ briefs and the

record, we affirm the district court’s denial of Cadet’s motion to suppress and

motion for judgment of acquittal. However, as explained below, we vacate the

district court’s enhancement of Cadet’s sentence based on an alleged prior

conviction and remand to the district court for re-sentencing consistent with this

opinion and the Supreme Court’s opinion in Booker.1


       1
       Relying on Blakely, Cadet argued for the first time on appeal that a two-point sentencing
enhancement for obstruction of justice must be reversed as a violation of his Sixth Amendment

                                               2
                                      I.BACKGROUND

       On July 19, 2002, a federal grand jury sitting in the Southern District of

Florida returned a three count indictment charging Cadet with: knowingly and

intentionally possessing with intent to distribute five grams or more of a mixture

and substance containing a detectable amount of cocaine base in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 1); knowingly and intentionally

possessing with intent to distribute a mixture and substance containing a detectable

amount of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)

(Count 2); and knowingly possessing a firearm in furtherance of a drug trafficking

crime in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A)(i) (Count

3). A jury convicted Cadet on all three counts of the indictment.

       Prior to trial, the government filed an information of a prior conviction

pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851.2 The information indicated that



rights. Because Cadet raises this Blakely/Booker issue for the first time on appeal, we review it
for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005), cert.
denied, 73 U.S.L.W. 3531 (U.S. June 20, 2005) (No. 04-1148). To establish plain error, Cadet
must show that there was (1) error (2) that was plain, (3) that affected his substantial rights, and
(4) that seriously affected the fairness, integrity, or public reputation of the proceedings. Id. The
first and second parts of this test are easily met because the district court was operating under the
premise that the federal sentencing guidelines were mandatory. Because we vacate Cadet’s
sentence on another ground and remand for re-sentencing, we need not reach the third prong of
the plain error standard. The district court will have an opportunity to sentence Cadet using an
advisory federal sentencing guidelines system on remand.
       2
        The government, Cadet, and the district court properly complied with the procedural
requirements outlined in 21 U.S.C. § 851.

                                                  3
Cadet had a prior conviction for possession with intent to sell, manufacture, or

deliver marijuana. Cadet, asserting that the plea in the alleged prior conviction was

involuntary and based upon ineffective assistance of counsel, filed a notice of

challenge to the validity and applicability of the alleged prior conviction. After

briefing and a hearing on this sentencing issue, the district court determined that

the alleged prior conviction was constitutional and that Cadet was subject to an

enhancement under § 851.

      The district court ultimately sentenced Cadet to concurrent sentences of 120

months on the cocaine base charge and 78 months on the marijuana charge

followed by a consecutive sentence of 60 months on the firearm charge for a total

of 180 months of incarceration.

                                  II.DISCUSSION

      Section 841 of Title 21 provides that, if a person violates the statute “after a

prior conviction for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment which may not be less than 10 years and not

more than life imprisonment.” 21 U.S.C. § 841(b)(1)(B). After the government

files an information stating the previous conviction to be relied upon, the defendant

may deny the conviction or claim that the conviction was invalid by filing a written

response. See 21 U.S.C. § 851(a) and (c). The defendant has the burden of



                                           4
proving by a preponderance of the evidence that a prior conviction is

constitutionally invalid. See 21 U.S.C. § 851(c)(2). Cadet argues that his

underlying alleged prior state conviction, a withhold of adjudication, was

unconstitutional as the result of an unknowing and involuntary guilty plea due to

ineffective assistance of counsel. Therefore, he argues, an enhancement based on

this withhold of adjudication was inappropriate. At a hearing on this issue, the

district court concluded that Cadet’s state court counsel was not ineffective and the

alleged prior conviction was valid.

      We review “mixed questions of law and fact raised in an ineffective

assistance of counsel claim de novo, and review the district court’s findings of fact

for clear error.” Carr v. Schofield, 364 F.3d 1246, 1264 (11th Cir.), cert. denied,

125 S. Ct. 815 (2004) (in the context of a petition for writ of habeas corpus under

28 U.S.C. § 2254). “[T]he voluntariness of the plea depends on whether counsel’s

advice was within the range of competence demanded of attorneys in criminal

cases.” Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (citation and

internal quotation omitted). To succeed on an ineffective assistance of counsel

claim, a defendant must show by a preponderance of the evidence that (1)

counsel’s performance was deficient, and (2) this deficiency resulted in prejudice.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To



                                          5
prove prejudice, it must be shown that “there is reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068. This two-part standard is applicable to

ineffective assistance of counsel claims arising out of the plea process. Hill, 474

U.S. at 57, 106 S. Ct. at 370. Cadet alleges that he was prejudiced by counsel’s

deficient performance because he would not have pleaded guilty if his state court

counsel had advised him of the federal sentencing enhancement consequences of

his guilty plea.

       In United States v. McCarthy, we rejected the argument that the state trial

court, counsel, or the prosecutor are constitutionally required to warn the defendant

that his guilty plea could have sentencing consequences if he was later convicted in

federal court.” 320 F.3d 1230, 1234 (11th Cir. 2003). We stated that “these

potential consequences are clearly collateral” and neither the court nor counsel

“were constitutionally required to make him aware of them.” Id.; see also Wright

v. United States, 624 F.2d 557, 561 (11th Cir. 1980) (“[A] plea’s possible

enhancing effect on a subsequent sentence is merely a collateral consequence of

the conviction; it is not the type of consequence about which a defendant must be

advised before the defendant enters the plea.”). Nevertheless, we discern an

important difference between a failure to inform and affirmative misinformation.



                                          6
See Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989). “Counsel’s

affirmative misrepresentation in response to a specific inquiry from the defendant

may, however, under certain circumstances, constitute ineffective assistance of

counsel.” United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir. 1985).

Thus, at issue, is whether the statements of Cadet’s state court counsel were

affirmative misrepresentations.

       Although Cadet did not specifically ask his counsel if his plea could be used

to enhance his sentence if he were later convicted in a federal court, he indicated

his concern about a criminal record in his discussions with his counsel prior to

entering the guilty plea.3 Cadet’s state court counsel advised him that by accepting

the guilty plea he would have no record, that the plea would not be used against

him in any future proceedings, and that a withhold of adjudication of guilt meant

there would be no adjudication of guilt, no criminal record, and no adverse

consequences. Cadet argues that this advice was affirmative misinformation.

According to Cadet, the result of counsel’s misinformation is that he entered his

guilty plea under the mistaken belief that he was not a felon.

       Cadet was informed by counsel and the state court judge that his withhold of

adjudication could potentially have some adverse effects, i.e., due to his plea he


       3
        At the initial sentencing hearing on January 27, 2004, this factual proffer was accepted
by the government and the district court.

                                                7
could lose his driver’s license or be deported if an alien, but he was also

specifically told that he was not a felon as a result of his guilty plea. Thus, the

district court erred in finding that Cadet’s alleged prior conviction was

constitutionally valid and applying the § 851 enhancement.

                                 III.CONCLUSION

      We affirm the district court’s denial of Cadet’s motion to suppress and

motion for judgment of acquittal. We vacate Cadet’s sentence and remand to the

district court for re-sentencing consistent with this opinion and the Supreme

Court’s decision in Booker.

      CONVICTIONS AFFIRMED; SENTENCE VACATED AND

REMANDED FOR RE-SENTENCING.




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