     Case: 09-10398 Document: 00511367907 Page: 1 Date Filed: 02/01/2011




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

                                                 FILED
                                                                          February 1, 2011
                                     No. 09-10398
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KIM JOE GRAVES, also known as K-Rock, also known as Kim Joe Graves, Jr.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:08-CV-1290
                              USDC No. 3:05-CR-82-4


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Kim Joe Graves, federal prisoner # 33646-177, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion challenging his conviction and sentence for
conspiracy to (1) possess with intent to distribute and (2) distribute 50 grams or
more of a controlled substance. The district court enhanced Graves’s sentence
pursuant to U.S.S.G. § 4B1.1 based on his prior Texas conviction of delivery of
a controlled substance, which it classified as a controlled substance offense. This


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   No. 09-10398

court granted Graves a COA on the issue whether his appellate counsel was
ineffective for failing to raise before this court the fact of its decision in United
States v. Gonzales, 484 F.3d 712 (5th Cir. 2007), which was decided while
Graves’s direct appeal was pending, concerning this classification of his prior
delivery of a controlled substance conviction as a controlled substance offense.
      Because counsel did not object concerning this classification at sentencing,
review on direct appeal would have been limited to plain error. See Gonzales,
484 F.3d at 714. To show plain error, an appellant must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error, but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Under the law at the time that Graves’s appeal was decided, his prior
conviction of delivery of a controlled substance would not have constituted a
controlled substance offense under § 4B1.1 unless the charging documents or
jury instructions revealed that the offense did not involve a mere offer to sell.
See Gonzales, 484 F.3d at 714-16; see also United States v. Ford, 509 F.3d 714,
717 n.2 (5th Cir. 2007) (noting that the definition of “drug trafficking offense”
under U.S.S.G. § 2L1.2(b)(1) that was considered in Gonzales and the definition
of “controlled substance offense” as defined in U.S.S.G. § 4B1.2(b) for § 4B1.1
enhancement are nearly identical and may be treated as identical for purposes
of determining whether an offense meets either definition).
      Although Gonzales was not decided until Graves’s appeal was pending,
any error under Gonzales still satisfied the “clear or obvious” prong of the plain
error test because “it is enough that the error be plain at the time of appellate
consideration.” United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005)
(internal quotation marks and citation omitted). Furthermore, Gonzales itself
was decided under the plain error review standard, and relief was granted to the
defendant. 484 F.3d at 714, 716 (“[W]e review for plain error since [Gonzales]

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                                   No. 09-10398

did not properly preserve his argument below. . . . . [T]he district court erred
when it concluded that Gonzales’s prior conviction was for a drug-trafficking
offense[, and] this error is plain since Garza-Lopez 1 makes it clear that offering
to sell a controlled substance does not constitute a drug-trafficking offense.”).
Nothing in the record indicates that the necessary documents were presented to
the district court, and the district court’s apparent reliance on the presentence
report alone in classifying Graves’s prior conviction of delivery of a controlled
substance as a controlled substance offense under § 4B1.1 constituted error that
was clear or obvious. See id. at 274.
      Because the 151- to 188-month guidelines range that Graves would have
been subject to without the career offender enhancement was significantly lower
than the below-guidelines 216-month sentence that the district court imposed,
Graves would have satisfied the third prong of the plain-error test.             See
Gonzales, 484 F.3d at 716 (concluding that Gonzales met his burden on proving
that the error affected his substantial rights by showing that the correctly
calculated guidelines range was “significantly lower” than the sentence he
received). As to the final prong, any such sentencing error seriously affected “the
fairness, integrity, or public reputation of judicial proceedings” because it
“clearly affected” Graves’s sentence. Id. (internal quotation marks and citation
omitted). Indeed, the Government here makes no effort to argue that the error
was harmless and, instead, concedes that Graves’s sentence should be vacated
      Because such a plain error argument would have constituted a solid,
meritorious argument based on directly controlling precedent and because
counsel’s filing of a motion to withdraw rather than an appellate brief concerning
this issue cannot be the result of any conceivable strategic decision, counsel
acted deficiently in failing to raise this issue on appeal or to at least notify this
court of the Gonzales decision after he had filed his Anders brief. See Strickland



      1
          Garza-Lopez was decided in May of 2005, well before Graves’s February 2006
sentencing.

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v. Washington, 466 U.S. 668, 687, 689 (1984). Graves has shown that he was
prejudiced by counsel’s failure to raise the issue on appeal because there is a
reasonable probability that the result of his appeal would have been different if
the issue had been raised. See Strickland, 466 U.S. at 694. Accordingly, we
vacate the judgment of the district court denying Graves’s § 2255 motion, and
we remand this case to the district court for an order granting Graves’s §2255
motion and ordering a vacatur of his sentence and re-sentencing not inconsistent
with this opinion.
      JUDGMENT VACATED; REMANDED.




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