                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-15572                   MAY 18, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

         D. C. Docket Nos. 08-00034-CV-BAE-6, 05-00010-CR-BAE

VANDARREL LEON DOE,



                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.


                        ________________________

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

                               (May 18, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
      Vandarrel Leon Doe pro se appeals the denial of his motion to vacate, set

aside, or correct sentence, pursuant to 28 U.S.C. § 2255. Doe argues that his

counsel was ineffective for misadvising him that, if he accepted the government’s

proffered plea agreement, he would face 360 months’ to life imprisonment, when

he actually would have faced only 151 to 188 months’ imprisonment. For the

reasons set forth below, we vacate and remand.

                                         I.

      In his motion, Doe argued that his counsel was ineffective for misadvising

him on the term of imprisonment that he would face if he accepted the

government’s proffered plea agreement. Doe asserted that his counsel advised that

his guideline imprisonment range if he accepted the agreement in question would

be 360 months’ to life imprisonment. Not wishing to serve such a sentence, he

elected to go to trial. He was found guilty and sentenced to life imprisonment. He

later discovered that his guideline range if he had accepted the agreement would

have been 151 to 188 months’ imprisonment. Absent his counsel’s erroneous

advice, he would have plead guilty rather than proceed to trial. The government

responded that Doe’s counsel correctly advised that his guideline imprisonment

range if he had accepted the agreement would have been 360 months’ to life

imprisonment. The government submitted a copy of the agreement.



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      The record demonstrates that, on July 14, 2005, a federal grand jury returned

an indictment charging Doe with (1) conspiring to manufacture and distribute 50

grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846

(“Count 1”); and (2) manufacturing 50 grams or more of crack cocaine, in violation

of § 841(a)(1) (“Count 4”). The agreement submitted by the government with its

response demonstrates that, on January 13, 2006, the government proffered an

agreement that stated that Doe would plead guilty to Count 4, which carried a

statutory maximum of life imprisonment, and the government would dismiss Count

1 and not object to a 3-level reduction for acceptance of responsibility. The record

demonstrates that, after Doe rejected the agreement, on February 1, 2006, the

government filed a 21 U.S.C. § 851 notice of intent to seek an enhanced penalty

based on his prior convictions, specifying that it intended to rely on six previous

cocaine convictions of Doe’s to increase his statutory penalty to life imprisonment.

The jury found Doe guilty of both counts, and the district court sentenced Doe to

life imprisonment as to both counts pursuant to the § 851 notice.

      Based on this record evidence and the agreement submitted by the

government, a magistrate judge recommended denying the § 2255 motion,

reasoning that Doe’s counsel correctly advised that his guideline imprisonment

range if he had accepted the agreement would have been 360 months’ to life



                                           3
imprisonment. The magistrate noted that it appeared that, had Doe accepted the

agreement, the government would not have filed a § 851 notice and sought an

enhanced penalty. Doe objected to the magistrate’s report and recommendation,

arguing that the magistrate failed to review the terms of the agreement and that the

agreement required him to plead guilty to a lesser included offense of Count 4 that

carried a statutory maximum term of 20 years’ imprisonment. Doe submitted a

copy of the agreement to which he referred. This agreement demonstrated that, on

January 25, 2006, the government proffered an agreement that stated that Doe

would plead guilty to“manufacturing a quantity of cocaine,” an offense that carried

a statutory maximum term of 20 years’ imprisonment, and the government would

dismiss the remaining counts and not object to a 3-level reduction for acceptance

of responsibility. The date on this agreement was a week later than that on the

previous agreement submitted by the government, and both agreements bore the

same Indictment Number of CR605-10. The district court adopted the magistrate’s

report and recommendation without mentioning the discrepancy in the agreements.

      Upon Doe’s motion for a certificate of appealability (“COA”), the district

court granted a COA on his proposed question of “[w]hether counsel was

ineffective when he specifically told [Doe] that his sentencing exposure would be

30 years, when [Doe’s] sentencing exposure would have been a more lenient 12



                                          4
[to] 15 years.” The district court reasoned:

      Doe’s argument has legs, as the plea agreement (which evidently was
      not in the record for the [magistrate] to review, [since] Doe just filed
      it) shows that the [government] agreed to ‘not more than 20 years
      imprisonment’ [and] Doe’s attorney, says the [report and
      recommendation] ‘informed Doe that he faced thirty years to life
      imprisonment if he accepted the plea offer.’ And Doe is affirmatively
      contending that he would have accepted the deal. One thus would
      suppose this claim to have merit.

                                           II.

      An ineffective-assistance-of-counsel claim is a mixed question of law and

fact; we review the district court’s findings of fact for clear error and decision on

the ultimate issue de novo. Conklin v. Schofield, 366 F.3d 1191, 1201 (11th Cir.

2004). The right to counsel is the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063, 80 L.Ed.2d

674 (1984). The benchmark for judging a claim of ineffective assistance of

counsel is whether counsel’s performance so undermined the proper functioning of

the adversarial process that the proceedings cannot be relied on as having produced

a just result. Id. at 686, 104 S.Ct. at 2064. To make such a showing, a prisoner

must prove that (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced the defendant. Id. at 687, 104 S.Ct. at 2064. To satisfy the

prejudice component, “[t]he defendant must show that there is a reasonable

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

                                           5
proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. Specifically

regarding ineffective-assistance claims relating to a plea agreement, the defendant

must show “a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). A reasonable

probability is one sufficient to undermine confidence in the outcome. Strickland,

466 U.S. at 694, 104 S.Ct. at 2068.

                                        III.

      The district court failed to address the January 25, 2006, agreement, but

merely adopted the magistrate’s report and recommendation, which relied on the

agreement previously submitted by the government. The government concedes on

appeal that the agreement it submitted was an earlier draft that was superseded by

the agreement submitted by Doe. The district court’s mere adoption, then, was

error, as the January 25, 2006, agreement contains different terms than the January

13, 2006 agreement.

      Indeed, based on our review of the January 25, 2006, agreement, it appears

that Doe’s guideline imprisonment range, if he had accepted the agreement, as he

claims he would have, would have been 151 to 188 months. Specifically, the

January 25, 2006, agreement states that Doe would have pled guilty to a crime that



                                          6
carried a statutory maximum of 20 years’ imprisonment. Although the plea

agreement does not specify as much, it appears that this crime is codified under 21

U.S.C. § 841(b)(1)(C), which provides a 20-year maximum term of imprisonment

for crack cocaine offenses for which no drug amount is specified. See United

States v. Cromartie, 267 F.3d 1293, 1296 (11th Cir. 2001) (“Section 841(b)(1)(C)

provides for a maximum sentence of 20 years in prison for an offense that involved

an unspecified amount of cocaine”). The career offender provision, U.S.S.G.

§ 4B1.1, instructs that a defendant who qualifies as a career offender and whose

offense carries a statutory maximum of 20 years’ imprisonment has a base offense

level of 32. U.S.S.G. § 4B1.1(b)(C). Pursuant to U.S.S.G. § 3E1.1, a defendant

who accepts responsibility by, for instance, pleading guilty, and timely notifies the

government of his intent to plead guilty, merits a three-level reduction. A

defendant with the resulting total offense level of 29 and criminal history category

of VI has a guideline imprisonment range of 151 to 188 months. See U.S.S.G. Ch.

5, Pt. A, sentencing table. Thus, it seems that Doe’s counsel’s advice that his

guideline imprisonment range if he accepted the agreement would be 360 months

to life imprisonment was deficient. See Strickland, 466 U.S. at 687, 104 S.Ct. at

2064.1 Moreover, although the magistrate assumed that the government would not


       1
         It is notable that, while the January 25, 2006, plea agreement apparently refers to the
portion of the statute covering crimes for which no crack cocaine amount is specified,

                                                 7
have filed a § 851 notice if he had accepted the agreement, nothing in the record

supports this assumption. Were the government to have filed a § 851 notice even

though Doe accepted the agreement, and assuming that the January 25, 2006, plea

agreement referred to § 841(b)(1)(C), he would have faced an enhanced penalty of

only 30 years’ imprisonment, pursuant to § 841(b)(1)(C), rather than life

imprisonment. See 21 U.S.C. § 841(b)(1)(C) (providing for enhancement to

maximum of 30 years’ imprisonment based on a prior conviction for a felony drug

offense). Thus, it seems that, in any event, Doe’s sentence would have been

different absent his counsel’s advice. See Strickland, 466 U.S. at 687, 104 S.Ct. at

2064. Doe has contended that his attorney’s advice regarding his sentence

prompted him to proceed to trial rather than plead guilty.

       Because the district court failed to address the January 25, 2006, agreement,

it has not considered these matters in the first instance. Accordingly, we vacate

and remand for the district court to consider the effect of the January 25, 2006, plea

agreement draft on the ineffective-assistance-of-counsel analysis, in the first

instance.

       VACATED AND REMANDED.




§ 841(b)(1)(C), it simultaneously specified an amount of crack cocaine for which he would be
held responsible.

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