                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            DEC 8, 2008
                             No. 07-11558                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket Nos. 06-14162-CV-KMM
                           01-14019-CR-KMM

RAMIRO RAMOS,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                           (December 8, 2008)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       Ramiro Ramos, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion to vacate brought pursuant to 18 U.S.C. § 2255.

After review, we vacate and remand.

                                    I. BACKGROUND

       A superceding indictment charged Ramos with conspiracy (1) to hold

migrant workers in involuntary servitude, (2) to engage in extortion to affect

commerce, and (3) to harbor illegal aliens for commercial and personal gain, in

violation of 18 U.S.C. § 371 (Count 1); extortion, in violation of 18 U.S.C. § 1951

(Count 2); use of a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(a) (Count 3); and harboring illegal aliens, in violation of 8 U.S.C.

§ 1324(a) (Count 4). Ramos pled not guilty and proceeded to trial. A jury found

him guilty on all counts.

       At sentencing, Ramos’s presentence investigation report (“PSI”)

recommended, among other things, calculating an offense level of 28 using

U.S.S.G. § 2H4.1(b)(4)(B).1 The government objected that Ramos should receive

leadership role and obstruction of justice enhancements. The district court

       1
         Section § 2H4.1 calculates the offense level of a defendant convicted of an involuntary
servitude offense. If the defendant also was convicted of any other felony offense, the offense
level is “the greater of” either the base offense level plus 2 or the offense level for the other
offense plus 2. U.S.S.G. § 2H4.1(b)(4)(A)-(B). The commentary states that, if there are
multiple other felony offenses, the offense level for the “most serious offense” is used. The PSI
used the offense level for Ramos’s extortion offense (Count 2), which was 26 pursuant to
§ 2B3.2, plus 2 for a total offense level of 28.

                                                2
overruled the government objections as untimely and adopted the PSI’s

recommended sentencing range of 63 to 78 months’ imprisonment for Counts 1, 2

and 4, followed by an 84-month consecutive sentence for Count 3. The district

court sentenced Ramos to a total of 147 months’ imprisonments, 63 months on

Counts 1, 2 and 4 and 84 consecutive months on Count 3.

      Ramos appealed and, based on Scheidler v. National Organization for

Women, Inc., 537 U.S. 393, 123 S. Ct. 1057 (2003), this Court vacated Ramos’s

convictions and sentences on Counts 2 and 3 in their entirety and on Count 1 to the

extent it relied on the extortion alleged in Count 2. The Court remanded for

resentencing on Counts 1 and 4. United States v. Ramos, No. 02-16478, slip op. at

14 (11th Cir. Sept. 26, 2003).

      On remand, a new PSI recommended an offense level of 33 under §

2H4.1(b)(4)(B) for the harboring illegal aliens offense (Count 4), which was level

31, pursuant to § 2L1.1, plus 2 for a total offense level of 33.2 The PSI added an

obstruction of justice enhancement (2 levels), and the government timely objected

that Ramos should receive a leadership role enhancement (4 levels). This time the

district court included both enhancements and calculated an offense level of 39,

resulting in a guidelines range of 262 to 327 months’ imprisonment. The district



      2
          See supra note 1.

                                          3
court sentenced Ramos to a total of 180 months’ imprisonment, 60 months for

Count 1 and 120 months for Count 4, which was 33 months higher than the

sentence Ramos received at his original sentencing.

      Ramos filed a second appeal, challenging the calculation of his offense level

under § 2H4.1(b)(4) and arguing that his new sentences were vindictive. This

Court affirmed Ramos’s sentences. United States v. Ramos, 130 F. App’x 415

(11th Cir. 2005).

      Ramos’s § 2255 motion alleged, inter alia, that his counsel in his first direct

appeal gave ineffective assistance of counsel. Specifically, Ramos argued that his

appellate counsel failed to consult with him about the risks of filing the direct

appeal. The magistrate judge’s report (“R&R”) recommended the district court

deny Ramos’s ineffective assistance of appellate counsel claim. The R&R

concluded that Ramos “received vigorous and able representation on direct appeal

. . . .” Over Ramos’s objection, the district court adopted the R&R and, without

holding an evidentiary hearing, denied Ramos’s § 2255 motion.

      The district court denied Ramos’s motion for reconsideration and motion for

a certificate of appealability (“COA”). This Court granted Ramos a COA on this

issue only:

      [w]hether the district court erred in finding that counsel was not
      ineffective for pursuing appellant’s first direct appeal after failing to

                                           4
       recognize a calculation error in the original presentence investigation
       report that, when corrected at re-sentencing, resulted in a higher
       sentence for the appellant.

                                      II. DISCUSSION

       To prevail on a claim of ineffective assistance of counsel, an individual must

show that (1) “counsel’s performance was deficient” in that it “fell below an

objective standard of reasonableness,” and (2) “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.

Ct. 2052, 2064 (1984). The Supreme Court has held that counsel has a

constitutional duty “to consult with the defendant about an appeal when there is

reason to think either (1) that a rational defendant would want to appeal . . . , or (2)

that this particular defendant reasonably demonstrated to counsel that he was

interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S. Ct. 1029,

1036 (2000). To “consult,” means “advising the defendant about the advantages

and disadvantages of taking an appeal, and making a reasonable effort to discover

the defendant’s wishes.” Id. at 478, 120 S. Ct. at 1035; see also Thompson v.

United States, 504 F.3d 1203, 1206 (11th Cir. 2007); Gomez-Diaz v. United States,

433 F.3d 788, 792 (11th Cir. 2005).3


       3
         In reviewing a district court’s denial of a § 2255 motion, we review findings of fact for
clear error and questions of law de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004). Whether a defendant ultimately has received ineffective assistance of counsel is a mixed
question of fact and law reviewed de novo. Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir.

                                                 5
         By retaining appellate counsel, Ramos indicated an interest in appealing and,

under Flores-Ortega, triggered appellate counsel’s duty to consult with Ramos.

Ramos claims that his appellate counsel did not advise him of any disadvantages of

pursuing an appeal before filing his direct appeal. Specifically, Ramos claims his

appellate counsel did not investigate the circumstances of his first sentencing and

did not discover (1) the miscalculations of the offense level under § 2H4.1(b)(4)(B)

and (2) the government’s overruled (but otherwise arguably meritorious)

objections to the PSI’s failure to impose obstruction of justice and leadership role

enhancements. In addition, Ramos alleged his counsel did not explain to Ramos

that he likely faced a stiffer sentence if some but not all of his convictions were

vacated and the case was remanded for resentencing. In other words, Ramos

contends his appellate counsel did not advise him of any risks he faced if his direct

appeal was only partially successful.

         The district court must hold an evidentiary hearing on a motion to vacate

“unless the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief.” 28 U.S.C. § 2255; see also Downs-Morgan v.

United States, 765 F.2d 1534, 1536-37 (11th Cir. 1985). Given Ramos’s detailed

allegations, the district court erred in declining to hold an evidentiary hearing to


2002).


                                            6
establish the contents of appellate counsel’s consultation with Ramos about

pursing a direct appeal. See Thompson, 433 F.3d at 792. On remand, the district

court shall determine: (1) whether Ramos’s counsel in his first direct appeal

fulfilled his duty to consult with Ramos and to make reasonable efforts to

determine Ramos’s informed wishes regarding an appeal; and (2) if not, whether

Ramos suffered any prejudice as a result. On remand, the parties shall also address

whether the first sentence was merely the result of a guideline miscalculation (in

Ramos’s favor) and whether Ramos had any legal entitlement to that lower offense

level and ultimately lower sentence. Accordingly, the judgment denying Ramos’s

§ 2255 motion is vacated and the action is remanded to the district court for further

proceedings consistent with this opinion.

      VACATED and REMANDED.




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