     Case: 17-51114      Document: 00514930888         Page: 1    Date Filed: 04/25/2019




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

                                                                             FILED
                                      No. 17-51114                       April 25, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

CARLOS SAUZO, also known as Felix Manuel Negron, also known as Miguel
Rivera, also known as Felix Antonio Negron, Jr., also known as Carlos Emilio
Saurzo-Martinez, also known as Carlos Suaso-Martinez, also known as Miguel
Antonio Rivera,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:17-CV-1021
                             USDC No. 5:14-CR-71-5


Before SOUTHWICK, HAYNES, and HO, Circuit Judges.
PER CURIAM: *
       Carlos Sauzo, federal prisoner # 99523-038, moves for a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence for conspiracy to possess




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-51114     Document: 00514930888     Page: 2   Date Filed: 04/25/2019


                                  No. 17-51114

with intent to distribute heroin. The district court sentenced Sauzo to 120
months of imprisonment and five years of supervised release.
      Sauzo argues that the district court erred in failing to require a
Government response or hold an evidentiary hearing before dismissing his
§ 2255 motion.    He contends that the record currently contains only his
allegations and sworn affidavit, which have not been discredited. He argues
that trial counsel was ineffective for failing to properly discuss the case with
him; for misadvising him about the availability of defenses; for misadvising
him that he faced a sentence of 40 to 60 months of imprisonment, with a
maximum of 60 months; and for failing to investigate the applicable guideline
calculations. He contends that he would not have pleaded guilty and would
have insisted on going to trial if he had been properly advised of the sentence
he faced and that counsel’s misleading advice rendered his plea unknowing,
involuntary, and unintelligent.
      In order to obtain a COA, Sauzo must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003).         He may satisfy “this standard by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-
El, 537 U.S. at 327.
      A district court may deny a § 2255 motion without conducting an
evidentiary hearing “if the motion, files, and records of the case conclusively
show that the prisoner is entitled to no relief.” United States v. Bartholomew,
974 F.2d 39, 41 (5th Cir. 1992). We review the district court’s denial of a § 2255
motion without holding an evidentiary hearing for an abuse of discretion.
United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).



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                                  No. 17-51114

      The district court relied on Sauzo’s statements at rearraignment and in
his signed plea agreement to deny his claims.        In light of Sauzo’s sworn
allegations in his § 2255 motion and affidavit, which include his allegation that
his attorney did not explain the plea agreement to him, and in the absence in
the record of any response by Sauzo’s trial attorney or a rearraignment
transcript, the motion, files, and records of the case do not necessarily and
conclusively show that Sauzo is entitled to no relief. See Bartholomew, 974
F.2d at 41. Reasonable jurists would debate the correctness of the district
court’s denial of relief on Sauzo’s claims of ineffective assistance of counsel in
connection with the decision to plead guilty without a response from his trial
attorney and an evidentiary hearing. See Slack, 529 U.S. at 484. The issue is
“adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S.
at 327.
      Accordingly, a COA is GRANTED on the issue whether the district court
abused its discretion in denying Sauzo’s § 2255 motion without requiring a
response from his trial attorney and without holding an evidentiary hearing.
We VACATE the district court’s judgment, and REMAND to the district court
for further proceedings consistent with this opinion.         See Whitehead v.
Johnson, 157 F.3d 384, 388 (5th Cir. 1998). However, we offer no opinion on
the resolution of the merits of Sauzo’s § 2255 motion.




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