                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-7339


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMEAL GOULD, a/k/a Milio,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:10-cr-00245-JFM-1; 1:13-cv-00230-JFM)


Submitted:   August 26, 2014                 Decided:   September 4, 2014


Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Jameal Gould, Appellant Pro Se. Christine Marie Celeste, OFFICE
OF THE UNITED STATES ATTORNEY, Peter Jeffrey Martinez, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jameal          Gould     appeals        the     district     court’s     order

denying his 28 U.S.C. § 2255 (2012) motion to set aside, vacate,

or    correct    his       sentence.           We     granted      a    certificate    of

appealability (“COA”) only as to Gould’s claim that his second

attorney, Marcia Shein, was ineffective in failing to object to

the     computation           of      Gould’s         criminal         history     score.

Particularly, Gould asserts that Shein should have objected to

counting his two prior Maryland sentences separately, pursuant

to U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.2(a)(2)

(2010), because there was no intervening arrest, as that term is

defined in U.S.S.G. § 4A1.2(a)(2).

           In        our     order     granting       a     COA,   we     directed     the

Government      to    file    an     informal       brief    addressing    this    issue,

which it has done.            The time for Gould to reply has lapsed, and

thus the appeal is ripe for disposition.

           For the following reasons, we conclude the record does

not support the district court’s finding that an intervening

arrest justified counting Gould’s Maryland sentences separately.

However, because the record is also insufficient to allow us to

conclusively         resolve       whether       these       sentences      should     be

considered      as     a     “single”     sentence,          pursuant      to    U.S.S.G.

§ 4A1.2(a)(1)(B), we vacate the district court’s order as to the

denial of relief on this claim and remand this case to the

                                             2
district court for further proceedings on Gould’s ineffective

assistance claim.

                                                 I.

               In    her          November     2011   sentencing          memorandum,            Shein

argued that two of Gould’s prior convictions identified in the

presentence         report          (“PSR”)    should       not    count     separately           for

career    offender           purposes    because       they       were    part       of    the    same

course of conduct.                  Shein emphasized that, although there were

two separate criminal cases, the matters “were consolidated for

sentencing purposes” and the same sentence was imposed on both

charges.

            According to the PSR, Gould was arrested on January 6,

2001 and charged in a Maryland state court with possession with

intent    to     distribute            narcotics.           This    arrest       followed         the

execution      of        a   search     warrant       for    a     home    where          Gould    was

sleeping, which yielded 7.3 grams of cocaine and $944.                                           Gould

pleaded    guilty            on    February     25,   2004,        and    was    sentenced          to

fifteen years in prison with ten years suspended.                                          The case

number    for       this          conviction    was    “22K0101000176”               (hereinafter

“Case Number 0176”).

            The          second        Maryland       conviction,          which          was     also

identified          as       for     possession       with        intent        to        distribute

narcotics, arose from Gould’s arrest on February 23, 2001.                                          No

details regarding the circumstances of this arrest were recited

                                                  3
in the PSR.       Instead, the PSR merely noted that Gould pleaded

guilty on February 25, 2004, and was sentenced to fifteen years

incarceration with ten years suspended.               The case number for

this   conviction    was     “22K01000180”     (hereinafter    “Case        Number

0180”).

           In addition to arguing that these convictions should

not count separately towards the career offender designation,

Shein also asked the court to “evaluate whether or not there are

two separate countable offenses” in terms of criminal history

points.

           To support her argument, Shein included a transcript

from   Gould’s    February     25,    2004    state   court   plea        hearing.

According to this transcript, the charge in Case Number 0180 —

felony distribution of cocaine — was based on Gould’s sale of

cocaine to undercover police officers in October 2000.                    But, in

reciting the factual basis for the guilty plea, the prosecutor

did not state that Gould was arrested on the day of the buy.

The date of Gould’s arrest for this charge was not identified.

           Case     Number    0176,   which    was    a   charge     of     felony

possession of cocaine, was based on the evidence seized upon

execution of the search warrant on January 6, 2001.                   According

to the prosecutor, the search warrant was obtained as a result

of the October 2000 controlled buy, as well as other controlled



                                       4
buys involving Gould.            It is clear that Gould was arrested upon

the completion of the search.

              Shein    succeeded       in    defeating        the     career     offender

designation, but she did not re-assert her objection to counting

the    Maryland       sentences       separately        in   terms     of    calculating

Gould’s criminal history score.                   The probation officer revised

the   PSR,    removing     the    career     offender        calculations,          but   the

Maryland sentences were still scored separately, each resulting

in    three   criminal     history      points.          With    a   total     of    eleven

criminal history points, Gould was placed in criminal history

category V.         The district court imposed a 175-month sentence,

which was within the Guidelines range.                   Gould did not appeal.

                                            II.

              The     Government        argued      that        Gould’s      ineffective

assistance     claim     was   without      merit,      as   any     objection       to   the

scoring of these sentences would have been unsuccessful.                                  The

Government      asserted       that    Gould      was    arrested      for     the    first

offense before he committed the second offense, for which Gould

was arrested on February 23, 2001.                      Thus, counsel argued that

Shein’s declination to pursue this objection was reasonable.

              Gould further refined his argument in response to the

Government’s opposition.              According to Gould, he was arrested on

February 23, 2001 for his participation in the controlled buy in

October 2000.         This is consistent with the record evidence:                        the

                                             5
transcript from the state court plea colloquy establishes that

the basis for Case Number 0180 was the controlled buy in October

2000,    and    the    PSR     reported    that      Gould       was    arrested    in        Case

Number 0180 in February 2001.                      Thus, Gould argued, because he

was     arrested       on     the   second         instance      of     criminal        conduct

(stemming from the contraband seized during execution of the

search warrant in January 2001) prior to being arrested on the

first    instance       of     criminal    conduct         (the        controlled       buy    in

October     2000),       there      was   no       intervening         arrest     and     these

sentences should not count separately.

               In     dismissing     Gould’s         motion,      the     district        court

accepted        the    Government’s        contention            that     there      was       an

intervening arrest.            Gould timely noted this appeal.

                                           III.

               This     court       reviews        the     district        court’s        legal

conclusions de novo.             United States v. Stitt, 552 F.3d 345, 350

(4th Cir. 2008).            Because the district court did not conduct an

evidentiary         hearing    on   the   motion         prior    to    denying     it,       “the

nature of the court’s ruling is akin to a ruling on a motion for

summary judgment.             In such a circumstance, we review the facts

in the light most favorable to the § 2255 movant.”                                       United

States     v.       Poindexter,     492   F.3d        263,       267    (4th    Cir.      2007)

(internal citation omitted).



                                               6
            Gould’s    ineffective   assistance    of   counsel      claim    is

governed by the familiar standard set forth in Strickland v.

Washington, 466 U.S. 668, 687-88, 691-94 (1984).              The district

court    analyzed     Shein’s   failure   to   object   in   terms    of     the

strength of the objection, and concluded that it was not viable

because there was an intervening arrest. 1        But the record, in its

current state, does not support this conclusion.

            The Sentencing Guidelines provide that:

     Prior sentences always are counted separately if the
     sentences   were    imposed   for   offenses   that   were
     separated   by   an    intervening   arrest   (i.e.,   the
     defendant is arrested for the first offense prior to
     committing the second offense).         If there is no
     intervening   arrest,    prior   sentences   are   counted
     separately unless (A) the sentences resulted from
     offenses contained in the same charging instrument; or
     (B) the sentences were imposed on the same day. Count
     any prior sentence covered by (A) or (B) as a single
     sentence.

U.S.S.G. § 4A1.2(a)(2) (emphasis added).




     1
       In terms of Strickland’s prejudice prong, if Gould’s
argument prevails, his criminal history score would be reduced
from eleven points to eight points, resulting in his placement
in criminal history category IV.    This, coupled with his total
adjusted offense level of twenty-nine, would reduce Gould’s
advisory Guidelines range from 140-175 months to 121-151 months.
See U.S.S.G. ch. 5, pt. A (sentencing table). That Gould’s 175-
month sentence is well above this revised range satisfies the
prejudice requirement.   See Glover v. United States, 531 U.S.
198, 202–04 (2001) (holding that Sixth Amendment prejudice
resulted from an asserted error that added six to twenty-one
months to the defendant’s sentence).



                                      7
              The Government, in its informal response, simply cites

the PSR, which reported the February 23, 2001 arrest, and posits

that this establishes that “Gould was arrested for the first

offense prior to committing the second offense.”                           The Government

has not provided any documents relevant to these sentences or

the documentation upon which the probation officer relied in

scoring them.

              In our view, the only evidence in the record that is

germane    to    the    critical         issue      of    whether    the    February         2001

arrest    was    predicated        on    conduct         that   occurred     prior      to    the

January 2001 arrest is the transcript from Gould’s state court

plea hearing.         Viewing this evidence in the light most favorable

to Gould, the transcript supports Gould’s contention that there

was no intervening arrest, as that term is used in U.S.S.G.

§ 4A1.2(a)(2),         because     Gould       was       not    arrested    on    the    first

offense prior to committing the second offense.                            As such, while

the    district       court’s    contrary        factual        conclusion       is   somewhat

understandable, given the PSR, it nonetheless amounts to error.

              This, however, does not end our inquiry.                        We must next

consider whether the two Maryland sentences were imposed on the

same    day     for    if   they    were       not,      the    sentences     would      count

separately,      despite     the        lack   of    an    intervening       arrest.          See




                                               8
U.S.S.G. § 4A1.2(a)(2)(B). 2            Although the district court noted in

its order denying § 2255 relief that “Gould was sentenced on

these convictions on the same day,” the PSR does not bear this

out. 3       Shein had asserted that the “cases were consolidated for

sentencing          purposes”   and    that   “[t]he   sentences    on   these    two

cases were imposed at a later date[,]” but she did not identify

that date.           Gould, for his part, does not offer any evidence to

establish when these sentences were imposed.

                   That the guilty pleas were taken on the same day and

that Gould received the same sentence for each charge is strong

indicia        that    the    sentences   were    imposed    on    the   same    day;

however, the record does not conclusively establish this fact.

Thus,        the    present   record   neither    supports   the   basis   for    the

district court’s rejection of Gould’s claim nor permits us to

verify the court’s assertion that the Maryland sentences were

imposed on the same day.



         2
       Gould’s sentences could not be treated as a “single”
sentence under U.S.S.G. § 4A1.2(a)(2)(A) because they did not
result   “from  offenses  contained   in  the   same  charging
instrument.”
         3
       The PSR could be understood to suggest that Gould both
pled guilty and was sentenced on the same day--February 25,
2004--as this is the lone date identified in the paragraphs
relevant to the Maryland convictions. However, the state court
transcript establishes that sentencing was deferred until March
10, 2004, at the earliest, which leads us to conclude that
sentencing occurred on a date that is not identified in the PSR.



                                              9
            Accordingly,     we    vacate      the   district     court’s    order

denying    relief    on   this    claim    and   remand    this    case     to   the

district court for further proceedings.               On remand, the parties

should provide the district court with evidence regarding when

the     Maryland    sentences     were    imposed.        Once    this      factual

uncertainty is resolved, the district court should then address

whether Shein was ineffective for failing to object to counting

these    sentences    separately.         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 AND REMANDED




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