                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                    No. 15-2935
                                   _____________

                              PEDRO VAZQUEZ,
                                   Appellant

                                        v.

                       UNITED STATES OF AMERICA
                             _____________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                        District Court No. 1-12-cv-07020
                 District Judge: The Honorable Noel L. Hillman

                             Argued April 25, 2017

     Before: SMITH, Chief Judge, McKEE, and RENDELL, Circuit Judges

                              (Filed: July 18, 2017)

Mark A. Berman [ARGUED]
Hartmann Doherty Rosa Berman & Bulbulia
65 Route 4 East
River Edge, NJ 07661
      Counsel for Appellant

Mark E. Coyne
John F. Romano [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700 Newark, NJ 07102
Matthew Skahill
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
      Counsel for Appellee

                                ________________

                                    OPINION*
                                ________________


SMITH, Circuit Judge.

      In December 2007, a federal court jury found Pedro Vazquez guilty on two

criminal counts: conspiring to distribute and possess with the intent to distribute

50 grams or more of cocaine base in violation of 21 U.S.C. § 846; and distributing

and possessing with the intent to distribute (PWID) 50 grams or more of cocaine

base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). Prior to trial, an enhanced

penalty information had informed Vazquez that he would be subject to a

mandatory minimum of 20 years imprisonment. See 21 U.S.C. § 851(a). After

trial, the presentence investigation report (PSR) noted that Vazquez had three

purported New Jersey PWID convictions: (1) a PWID conviction with a 364-day

sentence (364 conviction); (2) a PWID conviction with a five-year sentence, which

was the basis for the enhanced penalty information; and (3) a PWID conviction

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                         2
with a five-year sentence that was initiated by Accusation 142-97 (Accusation

conviction or Accusation). The PSR calculated a 324 to 405-month sentencing

guideline range. This range was increased to 360 months to life imprisonment

based on a conclusion that two of Vazquez’s prior convictions qualified as

controlled substance offenses for purposes of the career offender enhancement

under U.S. Sentencing Guideline (U.S.S.G.) § 4B1.1. Although the PSR did not

specify which convictions were the predicate for the enhancement, it is apparent

now that it was the PWID with the five-year sentence and the Accusation

conviction.   There was no objection at sentencing to the career offender

enhancement. The District Court sentenced Vazquez to 360 months’ imprisonment

on both counts to run concurrently.

      Vazquez’s direct appeal was unsuccessful. See United States v. Vazquez,

449 F. App’x 96, 104 (3d Cir. 2011). In November 2012, Vazquez filed a timely

pro se motion to vacate under 28 U.S.C. § 2255, which alleged that his trial and

appellate counsel were ineffective because they failed to challenge his

classification as a career offender. Vazquez asserted for the first time that his

counsel should have objected to the enhancement because the Accusation

conviction did not constitute a controlled substance offense for purposes of

U.S.S.G. § 4B1.1. In support of that assertion, Vazquez provided the judgment for

the Accusation, which showed that the PSR had erroneously described a conviction
                                       3
for simple possession of a controlled substance as PWID. Vazquez correctly noted

that in Salinas v. United States, 547 U.S. 188 (2006) (per curiam), the Supreme

Court held that simple possession cannot serve as a predicate “controlled substance

offense” for career offender purposes.

      This challenge to the Accusation conviction was a surprise to the

government. After more than a year, in February 2014, the government conceded

that Vazquez was correct that “one of the predicate offenses that designated him a

career offender . . . was incorrectly identified as a felony drug distribution offense,

when it was actually a felony drug possession offense.” A146. The District Court

granted a request by the government for additional time to determine if any of

Vazquez’s other convictions might qualify as a predicate offense for the purpose of

maintaining his career offender status, which in the government’s view would

render the § 2255 petition moot. The government’s investigation unearthed a

probation violation of the 364 conviction, for which Vazquez received a three year

sentence. Because no judgment had been entered for this probation violation, it had

not been listed in the PSR. After the New Jersey state court system was advised

that a judgment had not been issued on the probation violation, the New Jersey

Criminal Division issued a nunc pro tunc judgment sentencing Vazquez to three

years on the probation violation. On the heels of the nunc pro tunc judgment, the

government filed its opposition to Vazquez’s § 2255, conceding the errant
                                          4
characterization of the Accusation conviction in the PSR, but arguing that Vazquez

could not show the prejudice needed to prevail on his ineffectiveness claim.

According to the government, Vazquez would still qualify as a career offender

because the 364 conviction, which had not been counted as a predicate offense

initially because it was not imposed within ten years of Vazquez’s instant offense,

could now be counted as a controlled substance offense. The 364 conviction could

be considered because the guidelines required adding the three year sentence on

the probation violation to the original term of imprisonment, which resulted in the

total sentence falling within the applicable time period. See U.S.S.G. §§ 4A1.2(e)

& (k), 4B1.2(b).

      Vazquez vigorously opposed consideration of this nunc pro tunc judgment.

He argued that the government should be limited to a resentencing proceeding

based on the original record. The District Court was not persuaded and denied

Vazquez’s § 2255 petition.      The Court reasoned that this new information

regarding Vazquez’s criminal history would have been admissible at the initial

proceeding and therefore Vazquez would have been appropriately designated as a

career offender. Because Vazquez would thus have qualified as a career offender,

the Court concluded that Vazquez could not show that he had been prejudiced by

counsel’s failure to object to the career offender enhancement.        The Court,

therefore, denied his ineffectiveness claim.     Vazquez filed a timely appeal,
                                        5
challenging the District Court’s decision to permit the introduction of new

evidence at a resentencing and the conclusion that he had failed to show prejudice.†

      We review a District Court’s decision “permitting further development of

the record” at resentencing for an abuse of discretion. United States v. Dickler, 64

F.3d 818, 831 (3d Cir. 1995). In Dickler, we agreed with several of our sister

circuits “that, where the government has the burden of production and persuasion

as it does on issues like enhancement . . . , its case should ordinarily have to stand

or fall on the record it makes the first time around. It should not normally be

afforded ‘a second bite at the apple.’” Id. at 832 (quoting United States v. Leonzo,

50 F.3d 1086, 1088 (D.C. Cir. 1995), and citing United States v. Parker, 30 F.3d

542, 553-54 (4th Cir. 1994)).        Yet we pointed out that “we perceive no

constitutional or statutory impediment to the district court’s providing the

government with an additional opportunity to present evidence on remand if it has

tendered a persuasive reason why fairness so requires.” Id. (citing cases). And, we

noted that “[i]f the government, for want of notice or any other reason beyond its

control, does not have a fair opportunity to fully counter the defendant’s evidence

and the government’s theory does not carry the day, the district court is entitled to

permit further record development on remand.” Id. (emphasis added).

†
  The District Court exercised jurisdiction under 18 U.S.C. § 3231 and 28 U.S.C.
§ 2255. We have appellate jurisdiction under 28 U.S.C. §§ 1291, 2253(a), and
2255(d).
                                          6
      Here, it is clear that at the initial sentencing proceeding, the government

neither knew that Vazquez’s Accusation conviction was a simple possession

offense nor that Vazquez had violated his probation on the 364 conviction. In the

absence of notice that the Accusation conviction could not serve as a predicate

offense for the career offender enhancement, the government had no opportunity to

prove that there was another basis for applying the enhancement. Under these

circumstances, we conclude that the District Court did not abuse its discretion by

deciding that the government should be permitted to introduce new evidence if the

case were remanded for resentencing. See Dickler, 64 F.3d at 832.

      Accordingly, we turn to whether the District Court erred in concluding that

Vazquez could not demonstrate the prejudice required to succeed on his

ineffectiveness prong. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

“The legal component of an ineffective assistance of counsel claim . . . is subject to

plenary review.” Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998). In

United States v. Mannino, we considered a § 2255 habeas petitioner’s

ineffectiveness claim that was based on counsel’s failure to raise on direct appeal a

sentencing guidelines issue. 212 F.3d 835, 839 (3d Cir. 2000). In considering the

prejudice prong, we declared that the “test for prejudice under Strickland is not

whether petitioners would likely prevail upon remand, but whether we would have


                                          7
likely reversed and ordered a remand had the issue been raised on direct appeal.”

Id. at 844.

      We apply the test set out in Mannino. Because it is undisputed in this case

that the PSR was wrong in concluding that the Accusation conviction qualified as a

predicate offense for purposes of the career offender enhancement, and because the

career offender enhancement subjected Vazquez to a higher sentencing guideline

range, Vazquez has demonstrated a likelihood that we would have vacated the

sentence and remanded for resentencing if the error had been raised on direct

appeal. Indeed, in Moore v. United States, 571 F.2d 179 (3d Cir. 1978), we

declared that it is “clear, [that] when the information included in a presentence

report, on which a sentence is founded at least in part, is unreliable, due process

requires that a defendant be resentenced.” Id. at 183; see also Townsend v. Burke,

334 U.S. 736, 741 (1948) (declaring that when a prisoner is sentenced based on

assumptions about his criminal history which are “materially untrue[, s]uch a

result, whether caused by carelessness or design, is inconsistent with due process

of law, and such a conviction cannot stand”). Although it is possible that Vazquez

might receive the same sentence should he ultimately prevail, he “has an




                                        8
unqualified right to be present at . . . resentencing upon remand.”‡ Mannino, 212

F.3d at 845.

      The District Court relied upon Lockhart v. Fretwell, 506 U.S. 364 (1993), as

authority for its conclusion that Vazquez had not been prejudiced. In that case, the

Supreme Court held that the petitioner failed to demonstrate that he had been

prejudiced by an error that did not render the petitioner’s sentencing “unfair” or

“unreliable.” Id. at 371. The Court explained that “[u]nreliability or unfairness

does not result if the ineffectiveness of counsel does not deprive [him] of any

substantive or procedural right to which the law entitles him.” Id. at 372. The

error in Lockhart was counsel’s failure to raise a legal argument at sentencing. By

the time Lockhart’s § 2254 petition was filed, however, the legal basis for

counsel’s ineffectiveness no longer had merit. Id. Unlike Lockhart, the error in

this case was an incorrect factual averment in the PSR regarding his criminal

history, which persisted and may have implicated Vazquez’s due process rights.

See Moore, 571 F.2d at 182-83; Townsend, 334 U.S. at 741.

      For the reasons set forth above, we conclude that the District Court erred in

determining that Vazquez failed to demonstrate the prejudice required for his




‡
  Given the passage of both time and the Fair Sentencing Act of 2010, it may be
that Vazquez will receive a shorter sentence.
                                         9
ineffectiveness claim. We will reverse the judgment of the District Court and

remand for further proceedings.




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