                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                         REVISED JUNE 23, 2005
                                                              June 10, 2005
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                      _____________________                      Clerk

                              No. 04-50633
                         _____________________

                    UNITED STATES OF AMERICA,

                         Plaintiff - Appellee,

                                versus

                        ISMAEL HOLGUIN HERRERA,

                      Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
_________________________________________________________________


Before WIENER, DeMOSS, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

     Appellant Ismael Hoguin Herrera challenges the district

court’s denial of his motion to vacate his sentence.     After

considering Herrera’s argument and reviewing the record, the

court reverses the district court’s judgment and remands this

case for an evidentiary hearing on Herrera’s ineffective

assistance of counsel claim.

     A jury convicted Herrera of conspiracy to distribute

cocaine, aiding and abetting an attempt to possess cocaine with

intent to distribute, and being an unlawful drug user in

possession of a firearm.    The district court sentenced Herrera to


                                   1
concurrent 78-month prison terms on each count.    Initially, a

panel of this court affirmed the drug convictions but reversed

the firearm conviction.1    On en banc rehearing, however, the

court affirmed the firearm conviction.2

     Herrera filed a § 2255 motion in the district court alleging

that his convictions should be reversed because he had not had

the effective assistance of counsel.    Herrera argued that his

attorney incorrectly advised him to reject the Government’s plea

offer, which would have subjected him to a 48-month maximum

sentence under the sentencing guidelines.    He asserted that his

attorney’s advice was based on the attorney’s misunderstanding

that he faced only a 51-month maximum guideline sentence if he

was convicted at trial.    In actuality, Herrera faced a sentencing

range of 78 to 97 months.    Herrera maintained that he would have

accepted the plea offer had he known his true sentencing exposure

at trial.   The district court rejected Herrera’s claim.

     Herrera filed a timely notice of appeal from the district

court’s judgment and asked to proceed IFP on appeal.    The

district court granted Herrera leave to proceed IFP and a

certificate of appealability on “whether trial counsel was

ineffective because he allegedly misrepresented the ‘maximum

     1
      United States v. Herrera, 289 F.3d 311, 325 (5th Cir.
2002).
     2
      United States v. Herrera, 313 F.3d 882, 885 (5th Cir. 2002)
(en banc).


                                  2
exposure’ [Herrera] faced under the sentencing guidelines if

convicted.”

     This court “review[s] a district court’s conclusions with

regard to a petitioner’s § 2255 claim of ineffective assistance

of counsel de novo.”3   To prevail on an ineffective-assistance-

of-counsel claim, Herrera must satisfy the two-part test

enunciated in Strickland v. Washington.4   First, Herrera must

demonstrate that his attorney’s performance fell below an

objective standard of reasonableness.5   This court has described

that standard as “requiring that counsel research relevant facts

and law, or make an informed decision that certain avenues will

not be fruitful.”6   Second, Herrera must also prove that he was

prejudiced by his attorney’s substandard performance.7   “[T]o

prove prejudice, [Herrera] must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”8

     One of the most important duties of an attorney representing


     3
      United States v. Conley, 349 F.3d 837, 839 (5th Cir. 2003).
     4
      466 U.S. 668, 687 (1984).
     5
      Strickland, 466 U.S. at 687.
     6
      Conley, 349 F.3d at 841 (internal quotation marks and
citations omitted).
     7
      Strickland, 466 U.S. at 687.
     8
      Conley, 349 F.3d at 841 (internal quotation marks and
citations omitted).

                                  3
a criminal defendant is advising the defendant about whether he

should plead guilty.9      An attorney fulfills this obligation by

informing the defendant about the relevant circumstances and the

likely consequences of a plea.10         Apprising a defendant about his

exposure under the sentencing guidelines is necessarily part of

this process.       A defendant cannot make an intelligent choice

about whether to accept a plea offer unless he fully understands

the risks of proceeding to trial.11        “Failing to properly advise

the defendant of the maximum sentence that he could receive falls

below the objective standard required by Strickland.”12

     In this case, the district court did not determine whether

Herrera’s attorney misadvised Herrera about his sentencing

exposure.       Instead, the court accepted as true Herrera’s

allegation that his attorney informed him that he faced a maximum

guideline sentence of 51 months.         Noting that Herrera received a

sentence “only” 27 months higher than the maximum estimated by

his lawyer, the district court determined that the attorney had

not performed deficiently.13

     9
      Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).
     10
          Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995).
     11
          Id. at 1171.
     12
          Id.
     13
      Those 27 months produced a sentence approximately 53%
greater than the maximum purportedly estimated by counsel and
could have been 90% greater had the court imposed the sentence at
the top of the sentencing guidelines range instead of at the

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     In reaching its conclusion, the district court relied on

this court’s decision in United States v. Ridgeway.14       There,

defendant Ridgeway complained that his trial attorney advised him

that he would receive only four or five years of prison time even

though the charged offense had a mandatory minimum sentence of

120 months.15       Ridgeway asserted that he would not have pleaded

guilty if he had known that he faced at least 120 months in

prison.16       This court, however, determined that Ridgeway did not

show that he was prejudiced by his attorney’s alleged deficiency

because he did not show that he would have received a

“significantly less harsh” sentence.17       The court explained that

the record was clear that the prosecutor would have only

permitted Ridgeway to plead guilty to the indictment.18       Thus

regardless of whether he pleaded guilty or was convicted by a

jury, Ridgeway faced at least 120 months in prison because of the

mandatory minimum sentence.       The court reasoned that because 120

months was not “significantly less harsh” than Ridgeway’s actual

sentence of 121 months, Ridgeway could demonstrate prejudice only



bottom.
     14
          321 F.3d 512 (5th Cir. 2003).
     15
          Ridgeway, 321 F.3d at 513.
     16
          Id.
     17
          Id. at 514.
     18
          Id. at 515.

                                     5
by proving that the sentencing court could have and would have

departed below the statutory minimum sentence.19

     Unlike defendant Ridgeway who regardless of the purported

misinformation would have known how much prison time he faced

before entering his plea, Herrera faced a sentencing range under

the guidelines where the precise advice of counsel was essential

to deciding whether to accept the Government’s plea offer.       If

the attorney actually advised Herrera that he faced a maximum of

51 months of prison time, Herrera did not fully understand the

risks of going to trial.     An attorney who underestimates his

client’s sentencing exposure by 27 months performs deficiently

because he does not provide his client with the information

needed to make an informed decision about accepting a plea offer

or going to trial.20

     Not only would the attorney’s assistance be deficient under

these circumstances, a 27-month increase in a sentence

constitutes prejudice under the second prong of Strickland.

Here, the district court sentenced Herrera at the bottom of the

guidelines range; thus, the attorney’s purported underestimation

resulted in a sentence that was 53% more than the sentence

offered under the plea agreement.        Unlike Ridgeway where the

mandatory minimum sentence was not significantly less harsh than


     19
          Id.
     20
          See Teague, 60 F.3d at 1171.

                                   6
the actual sentence, the 51-month sentence purportedly advanced

by Herrera’s attorney is significantly less harsh than Herrera’s

actual sentence of 78 months.        Thus, Herrera’s situation is very

different from defendant Ridgeway’s case.

     In addition, this court no longer uses the “significantly

less harsh” test.21        One month after the district court rejected

Herrera’s claim, this court adopted the “any amount of jail time”

test in United States v. Grammas.22         This test originated from

the Supreme Court’s decision in Glover v. United States where the

Court explained that any amount of additional jail time has

significance under Strickland.23          This court determined that the

“any amount of jail time” test applies where the defendant was

convicted after the Supreme Court’s decision in Glover.24          The

court further held that grossly underestimating a defendant's

exposure under the sentencing guidelines constitutes ineffective

assistance of counsel.25        In Grammas, however, the record clearly

showed that the defendant’s attorney miscalculated his client’s




     21
      See United States v. Grammas, 376 F.3d 433, 439 (5th Cir.
2004) (adopting the “any amount of jail time” test).
     22
          Id.
     23
          Glover v. United States, 531 U.S. 198, 203 (2001).
     24
          Grammas, 376 F.3d at 438.
     25
          Id. at 436-37.

                                      7
sentencing exposure.26

     Here, the court cannot simply apply Grammas to Herrera’s

claim.    First, the district court did not determine whether

Herrera’s attorney miscalculated Herrera’s sentencing exposure.

The record contains only Herrera’s assertion that his attorney

told him that he faced 51 months.      Second, Herrera was convicted

before Glover was decided.     Thus, resolving Herrera’s claim on

the present record requires this court to decide whether a

presumed 27-month miscalculation constitutes ineffective

assistance of counsel.     A better alternative exists.

     Rather than decide the question based on an assumption, the

better approach is to have the district court conduct an

evidentiary hearing.     An evidentiary hearing will confirm or

dispel Herrera’s allegation that his attorney misrepresented the

prison time he faced and whether Herrera relied on those

misrepresentations in rejecting the Government’s plea offer.      A

remand will allow the district court to develop a complete

record, make appropriate fact findings, and grant relief in the

first instance if evidence supports Herrera’s contentions.

Consequently, the court REVERSES the district court’s order

denying habeas relief and REMANDS this cause for an evidentiary


     26
      See id. at 437 (observing that the defendant’s trial
attorney conceded that he was unfamiliar with the sentencing
guidelines and that he misinformed his client that he faced only
6 to 12 months if he was convicted when in actuality the
defendant was subject to a range of 70 to 87 months).

                                   8
hearing.

REVERSED & REMANDED.




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