                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS            May 4, 2004

                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                           No. 02-21040



     UNITED STATES OF AMERICA

                                Plaintiff - Appellee

     v.

     REGINALD TYRONE HOLLINS

                                Defendant - Appellant


          Appeal from the United States District Court
               for the Southern District of Texas
                           (00-CR-242)


Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.

PER CURIAM:*

     Reginald Hollins, a federal prisoner, appeals the district

court’s dismissal of his § 2255 motion.   Hollins contends that

his counsel performed ineffectively by failing to contest the

district court’s decision to sentence him to concurrent prison

terms, each of which exceeded the statutory maximum for the count



     *
          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that this opinion should not be published and is not precedent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.

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on which it was imposed.

     At the outset, we explain what is wrong with Hollins’s

sentences.   We do so because it is unclear whether the district

court identified the problem, and it is clear that the

government’s appellate brief does not correctly identify the

quandary.    We begin by referring to one particular provision of

the Sentencing Guidelines, § 5G1.2(d).     When a defendant is

convicted on multiple counts, as was the case here, the

Guidelines state that the sentence imposed on each count should

be the total punishment1 calculated under the Guidelines, with

the sentences on all counts running concurrently.     U.S. SENTENCING

GUIDELINES MANUAL § 5G1.2(b)-(c) (2000).   But, when the highest

statutory maximum sentence is less than the total punishment, as

also occurred here, the Guidelines provide that “the sentence

imposed on one or more of the other counts shall run

consecutively, but only to the extent necessary to produce a

combined sentence equal to the total punishment.”      Id. § 5G1.2(d)

(emphasis added).

     Section 5G1.2(d) of the Guidelines is the key to

understanding the error in Hollins’s sentences.     Hollins pleaded

guilty to violating two statutory provisions: 18 U.S.C.

§§ 922(g)(1) and 2119(1).    The Guidelines dictated that Hollins’s


     1
          An individual’s “total punishment” is the combined
length of her sentences. See U.S. SENTENCING GUIDELINES MANUAL
§ 5G1.2 cmt. (2000).

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total punishment should be from 151 to 188 months, and the

district court decided to sentence Hollins at the top of that

guideline range (i.e., 188 months).   Applying the general rule

for multiple-count cases, Hollins would have been sentenced to

188-month concurrent sentences on each count.     See § 5G1.2(b)-

(c).    But, here, the statutory maximum sentence for the § 2119(1)

conviction was 180 months, and for the § 922(g)(1) conviction it

was 120 months.    Thus, as correctly explained in the presentence-

investigation report, § 5G1.2(d) applies.   Hollins therefore

should have been sentenced to the statutory maximum of 180 months

on the § 2119(1) count, followed by a consecutive eight-month

term on the § 922(g)(1) count, for a total punishment of 188

months.    See United States v. Lucas, 157 F.3d 998, 1001-02 (5th

Cir. 1998) (“The maximum statutory penalty sets the upper limit

that may be imposed for a particular count.”).    Instead, the

district court sentenced Hollins to the entire 188 months on each

count, with the sentences running concurrently.    Between the cup

and the lip, or as here, between the presentence-investigation

report and the judgment, a slip occurred and, as a result, both

of Hollins’s concurrent, 188-month sentences exceeded the

relevant statutory maximums.

       We turn to the next point, one which the district court (and

the government on appeal) most assuredly identified.    In his plea

agreement, Hollins waived his right to appeal his sentence,

unless the district court imposed either an upward departure or a

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sentence above the statutory maximum.    Hollins also waived,

without exception, his right to bring a collateral attack on his

sentence under § 2255.   Hollins did not appeal his sentence, but

he now seeks habeas relief.    So, we are faced with the question

whether his waiver of the right to bring a collateral attack on

his sentence barred the district court (and bars us) from

considering his claim that his counsel was ineffective in failing

either to object to or to appeal his sentences.

     In this circuit, generally, “an informed and voluntary

waiver of post-conviction relief is effective to bar such

relief.”   United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.

1994) (per curiam).   To date, we have recognized one exception to

this general rule: an ineffective-assistance claim survives a

§ 2255 waiver, but “only when the claimed [ineffective]

assistance directly affected the validity of that waiver or the

plea itself.”   United States v. White, 307 F.3d 336, 343 (5th

Cir. 2002).   But, in White, this court also left open the

question whether a § 2255 waiver could be enforced “where the

sentence facially (or perhaps indisputably) exceeds the statutory

limits.”   White, 307 F.3d at 343 n.4.   This case presents the

question left open in White.

     We join two other circuits that have stated that a § 2255

waiver does not preclude review of a sentence that exceeds the

statutory maximum.    See United States v. Cockerham, 237 F.3d

1179, 1182-83, 1187 (10th Cir. 2001); DeRoo v. United States, 223

                                  4
F.3d 919, 923 (8th Cir. 2000); United States v. Michelsen, 141

F.3d 867, 872 n.3 (8th Cir. 1998); see also United States v.

Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004); United States v.

Andis, 333 F.3d 886, 891-92 (8th Cir. 2003); United States v.

Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001); United States v.

Teeter, 257 F.3d 14, 25 n.10 (1st Cir. 2001); United States v.

Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997); United States

v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996); United States v.

Bushert, 997 F.2d 1343, 1350 n.18 (11th Cir. 1993); United States

v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (all indicating that

a waiver of the right to appeal a sentence would be unenforceable

if the challenged sentence exceeded the statutory maximum); cf.

United States v. Goodman, 165 F.3d 169, 174-75 (2d Cir. 1999)

(refusing to enforce a waiver that purported “to deny the

defendant any appellate challenge not only to the selection of an

applicable guideline range but also to any upward departure from

that range, as long as the statutory maximum is not exceeded”);

United States v. Melancon, 972 F.2d 566, 568 & n.3 (5th Cir.

1992) (leaving open whether a waiver of the right to appeal would

be enforceable where the sentence is “contrary to the district

court’s assurances” at the plea hearing regarding length).

Accordingly, Hollins’s waiver does not bar his claim that his

counsel rendered ineffective assistance by failing to challenge

the imposition of sentences exceeding the applicable statutory

maximums.

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     On the merits of that claim, we hold that Hollins’s counsel

was ineffective in neither objecting to nor appealing each of his

sentences on the basis that it exceeded the statutory maximum for

the crime to which he pleaded guilty.     United States v. Conley,

349 F.3d 837, 839-841 (5th Cir. 2003).    Considering each

sentence, Hollins was prejudiced by his lawyer’s deficient

performance.     Cf. Apprendi v. New Jersey, 530 U.S. 466, 474

(2000) (indicating that each sentence must be examined

individually to determine whether it comports with the

Constitution).    Hollins is entitled to the habeas relief he

seeks--to have his sentences on both counts set aside.

     Accordingly, we REVERSE the district court’s judgment

denying relief under 28 U.S.C. § 2255, we VACATE both of

Hollins’s sentences, and we REMAND this case to the district

court for resentencing consistent with this opinion.

     REVERSED, SENTENCES VACATED, and REMANDED FOR RESENTENCING.




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