     Case: 16-40697       Document: 00514397448         Page: 1     Date Filed: 03/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                     No. 16-40697
                                                                                Fifth Circuit

                                                                              FILED
                                   Summary Calendar                     March 22, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                  Plaintiff - Appellee

v.

JAMES BAYLOUS WHITE, also known as Buck White,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CV-166
                             USDC No. 4:10-CR-18-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       James Baylous White, federal prisoner # 16611-078 and proceeding pro
se, is serving a sentence of 240 months’ imprisonment, imposed following his
guilty-plea conviction of conspiring to possess pseudoephedrine with the intent
to manufacture a controlled substance, in violation of 21 U.S.C. § 846. White’s
28 U.S.C. § 2255 motion was denied; but, our court granted a certificate of



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 16-40697     Document: 00514397448     Page: 2   Date Filed: 03/22/2018


                                  No. 16-40697

appealability (COA) on his claim that counsel’s deficient performance caused
him to reject the Government’s pre-trial plea offer, as well as on the related
issue whether the district court abused its discretion in denying relief on this
claim without holding an evidentiary hearing. A COA was denied for all other
issues.
      White asserts counsel performed ineffectively by advising him, during
the plea-negotiation stage, that a role enhancement under Sentencing
Guideline § 3B1.1(c) could not properly be applied, but that he would have to
go to trial in order to challenge the enhancement. He contends counsel was
ineffective for failing to advise him that he risked losing credit for acceptance
of responsibility if he went to trial. During trial, White pleaded guilty, without
benefit of a written agreement.
      Consistent with the issues permitted by his COA, White claims: he
would have accepted the Government’s plea offer had he been properly advised;
he was prejudiced because, by rejecting the plea offer and proceeding to trial,
he did not receive credit for acceptance of responsibility or the benefits of the
plea agreement; and an evidentiary hearing was necessary on this claim.
      Along that line, White asserts the court erred by denying relief based on
the determination that his subsequent, valid guilty plea (during trial) waived
the claim; and the Government concedes, correctly, that the court so erred. The
Supreme Court has “rejected the argument . . . that a knowing and voluntary
plea supersedes errors by defense counsel”. Missouri v. Frye, 566 U.S. 134, 141
(2012). As was true in Frye, White’s ineffective assistance challenge “is not to
the advice pertaining to the plea that was accepted but rather to the course of
legal representation that preceded it with respect to other potential pleas and
plea offers”. Id. at 141–42.




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    Case: 16-40697    Document: 00514397448      Page: 3   Date Filed: 03/22/2018


                                  No. 16-40697

      In order to prevail on his ineffective-assistance claim, White must
demonstrate    both   deficient   performance    and    prejudice.    Strickland
v. Washington, 466 U.S. 668, 687, 697 (1984).          Where counsel’s deficient
performance causes a plea offer to lapse or be rejected, defendant, in order to
establish prejudice, must demonstrate a reasonable probability that: (1) he
would have accepted the plea offer had he been afforded effective assistance of
counsel; (2) the plea would have been entered without the prosecution
canceling the offer or the trial court’s refusing to accept it; and (3) the end
result of the criminal process would have been more favorable by reason of a
plea to a lesser charge or a sentence of less prison time. Frye, 566 U.S. at 147.
      As the Government concedes, aside from White’s verified § 2255 motion,
the record is silent as to the advice provided by White’s trial counsel. We are
not convinced by the Government’s assertions that the record establishes a lack
of prejudice. Because it does not conclusively show White is entitled to no
relief, the court abused its discretion in not conducting an evidentiary hearing.
United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008); United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
      In view of the foregoing, the judgment denying relief on White’s § 2255
motion is vacated in part and this matter is remanded for further proceedings
on the ineffective-assistance claim on which the COA was granted. We, of
course, express no opinion on the merits of White’s claim.
      JUDGMENT VACATED IN PART; REMANDED FOR FURTHER
PROCEEDINGS.




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