                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-7475


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL N. LEWIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. John Preston Bailey,
Chief District Judge.   (1:05-cr-00108-JPB-DJJ-1; 1:09-cv-00032-
JPB-DJJ)


Argued:   March 20, 2012                   Decided:   April 20, 2012


Before NIEMEYER, GREGORY, and WYNN, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge Niemeyer and Judge Wynn
joined.


ARGUED: David L. Neal, Hillsborough, North Carolina, for
Appellant.   Robert Hugh McWilliams, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.     ON
BRIEF: William J. Ihlenfeld, II, United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

     In    this        case,       appellant        Michael         Lewis    filed       a     habeas

petition    pursuant          to        28   U.S.C.      § 2255     (2008)       to    vacate     his

conviction       on     grounds          that      he    did     not     have    the     effective

assistance       of     counsel.             Finding        that    the     Appellant’s         Sixth

Amendment rights were violated, we vacate his guilty plea and

remand to the district court.



                                                   I.

     Michael Lewis was charged in a federal criminal complaint

with conspiracy to distribute over five grams of cocaine base in

October    of     2005.            In    December        of     that     year,    a    grand    jury

indicted        him     on        four       drug-related          counts.            During    plea

negotiations, Lewis’s public defender, Brian Kornbrath, informed

the court that due to Lewis’s two previous drug convictions, he

would face a mandatory life sentence without the possibility of

parole if convicted at trial pursuant to 21 U.S.C. § 841.                                        The

negotiations were also informed by Kornbrath’s assessment that

Lewis     was    a     career           offender        under      the    Federal       Sentencing

Guidelines.           Lewis agreed to plead guilty and signed a plea

agreement.            But    on    the       day   of    the    scheduled        hearing,       Lewis

changed his mind and decided not to plead guilty.                                        Kornbrath

soon filed a motion to withdraw, and attorneys James Zimarowski

and Ann Ballard were appointed to represent Lewis.


                                                        2
     Zimarowski         and    Ballard      continued            negotiating     with      the

Government and, like Kornbrath, they concluded that Lewis would

face a mandatory life sentence if convicted on any count at

trial.     Zimarowski further advised Lewis that because of the two

previous      drug     convictions,       he   would        be    considered     a    career

offender under the Sentencing Guidelines.                         In February of 2006,

Lewis again returned to court to plead guilty.                                The district

court explained that pursuant to § 841, he might receive a life

sentence.        Following     the    factual         proffer      by   the    Government,

Lewis again changed his mind and indicated that he would not go

forward with the plea.

     Zimarowski then wrote his client a letter, informing him

that he was foolish not to accept the plea and that further plea

offers   were     not    likely      to   come       from    the     Government       or   be

accepted    by   the     district     court.          For    the    third     time,     Lewis

agreed to plead guilty.               The district court held a Rule 11

colloquy and entered the guilty plea on February 21, 2006 -- the

day the trial was set to begin.

     Later, before the sentencing hearing, Lewis filed a pro se

motion   to    withdraw       his   plea.        He    discovered       after     pleading

guilty that he was not a “career offender” under the Sentencing

Guidelines,      nor    was   he    subject    to      a    mandatory     life    sentence

pursuant to § 841.            The presentence report made clear that two

of Lewis’s three previous convictions could not count as prior


                                                 3
felonies under U.S.S.G. § 4B1.1 or 21 U.S.C. § 841 because the

maximum possible punishment for those offenses did not exceed

one year of imprisonment.                  When the parties returned for the

sentencing hearing, the court first considered the motion to

withdraw.         Zimarowski told the court that he had advised against

Lewis’s filing the motion.                  The court then directed Lewis to

argue       the    motion    himself.      It    later     denied    the     motion      and

sentenced Lewis to 405 months’ imprisonment to be followed by 5

years of supervised release.

     Lewis        appealed    to    the    Fourth       Circuit,    arguing       that    the

district      court    erred    by    not    permitting      him     to    withdraw      his

guilty        plea     and     by     improperly          participating           in     plea

negotiations.         In an unpublished per curiam opinion, this Court

affirmed      the    conviction      and    sentence.        In    February       of    2009,

Lewis filed a § 2255 motion in the district court.                          The district

court denied Lewis’s request for a certificate of appealability

(“COA”).          Following Lewis’s pro se request for a COA from the

Fourth Circuit, this Court issued one in June of 2011. 1



                                            II.

        Lewis      argues    that    his        Sixth    Amendment        right    to    the

effective assistance of counsel was violated by his attorney’s

        1
       We further grant Lewis’s motion, filed November 30, 2011,
to extend the scope of the COA.


                                                  4
erroneous advice and by the district court’s decision to order

him to argue his own motion to withdraw his guilty plea.                              We

consider both claims of error in turn.

                                         A.

       Lewis   contends    that     he    did      not    have      the    effective

assistance of counsel when he entered his guilty plea because

his   attorneys     misadvised    him    that     he   qualified     for   a    career

offender sentencing enhancement and a mandatory life sentence.

This Court reviews the legal questions involved in an appeal of

the denial of a § 2255 motion de novo.                   United States v. Luck,

611 F.3d 183, 186 (4th Cir. 2010).                     The question of whether

“trial    counsel    provided      ineffective         assistance     is    a    mixed

question of fact and law which this Court reviews de novo.”                       Id.

       To make out a claim for ineffective assistance of counsel,

an    appellant   must   satisfy    the       two-pronged    test    laid       out   in

Strickland v. Washington: he must show that counsel’s conduct

“fell below an objective standard of reasonableness” and that he

was prejudiced as a result.          466 U.S. 668, 688, 694 (1984).                   In

the plea context, the prejudice prong requires the petitioner to

show that there exists “a reasonable probability that, but for

counsel’s errors, [the defendant] would not have pleaded guilty

and would have insisted on going to trial.”                   Lafler v. Cooper,

566 U.S. ___ (2012) (slip op., at 5) (quoting Hill v. Lockhart,




                                              5
474 U.S. 52, 59 (1985)); see also Hooper v. Garraghty, 845 F.2d

471, 475 (4th Cir. 1988).

     The crux of Lewis’s ineffective assistance claim revolves

around a particular facet of Ohio law.                             Lewis was convicted of

two drug felonies in Ohio, one of which was classified as an “F-

5,” which carries a maximum sentence of one year.                                       He was also

convicted of an escape offense, another F-5 felony that also

carries     a    one-year        maximum         sentence.            Under         the        Federal

Sentencing       Guidelines,          a    defendant             qualifies         as     a    career

offender only if he has been convicted of two prior offenses

punishable by more than one year.                         U.S.S.G. § 4B1.1; id. § 4B1.2

appl.     n.1    (“‘Prior       felony       conviction’           means       a    prior        adult

federal or state conviction for an offense punishable by death

or   imprisonment         for     a       term     exceeding         one       year       . . . .”)

(emphasis       added).         Similarly,         a      defendant       is       subject       to   a

mandatory         minimum         life           sentence           under           21          U.S.C.

§ 841(b)(1)(A)(iii)          only          if    he        has     “two     or          more     prior

convictions for a felony drug offense . . . .”                                 Id.        A “felony

drug offense” is an offense that is “punishable by imprisonment

for more than one year.”                  21 U.S.C. § 802(44) (2002) (emphasis

added).         Thus,   while     Lewis         was       convicted    of      three          previous

felonies,       they    would     not       have       triggered      either            the     career

offender enhancement or the mandatory life sentence because two

of those three felonies were not punishable by more than one


                                                      6
year in prison.          As a result, Lewis’s attorneys misinformed him

when they said he was facing both a career offender enhancement

and a mandatory life sentence.

      Lewis’s       attorneys’         advice       was        plainly    deficient          under

Strickland.       The      Supreme          Court        has      recognized           that       in

representing        criminal         defendants,          an     attorney’s         “reasonable

professional judgment” is given a “heavy measure of deference.”

Strickland,       466     U.S.       at     690-91.            There     is,     however,         “a

difference      between          a    bad        prediction        within        an     accurate

description of the law and gross misinformation about the law

itself.”     Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995),

overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214

(4th Cir. 1996) (en banc).                  While “[w]e cannot expect criminal

defense lawyers to be seers, [] we must demand that they at

least apprise themselves of the applicable law and provide their

clients    with     a   reasonably         accurate       description          of     it.”     Id.

Here,     Lewis’s       attorneys         gave    legal        advice    predicated          on    a

plainly false interpretation of federal law.                              Had they simply

read the applicable federal statutes and correctly applied them

to the facts of this case, they would have discovered their

error.     Cf. Rompilla v. Beard, 545 U.S. 374, 383 (2005) (“There

is no need to say more, however, for a further point is clear

and   dispositive:         the       lawyers      were     deficient        in      failing       to

examine the court file on Rompilla’s prior conviction.”).


                                                    7
       The Government argues that the advice was not deficient

because       “[a]ny          federal       prosecutor      or      experienced           defense

attorney      knows       that       determining      a   defendant’s      prior         criminal

record with certainty” is a difficult task.                          Gov’s Br. 11.              But

this is a non sequitur.                 Lewis’s attorneys accurately determined

Lewis’s prior criminal record, noting that he had been convicted

of   three        offenses      in    Ohio.       Their     error    was       in   failing       to

recognize         that    the    two    F-5    offenses     were     not   felonies           under

federal law for purposes of the career offender enhancement or

§ 841.        Thus the Government conflates the question of whether

Lewis’s       criminal         record    was     accurately       ascertained            with   the

question of whether Lewis’s attorneys correctly applied black-

letter law.

       Turning to the second Strickland prong, we find that Lewis

was prejudiced by counsel’s erroneous advice that § 841 applied

to him. 2         First, we note the obvious: the bad advice given to

Lewis effectively negated his reason to plead guilty.                                Lewis was

told       that    if    he    went    to     trial   and   was     convicted,           he   would

receive a mandatory life sentence; he chose instead to plead

guilty       to    all    four        counts    without     the     benefit         of    a     plea

agreement,         J.A.       299,    which    subjected     him     to    a    maximum         life

       2
       Because we find that the deficient advice with respect to
§ 841 independently prejudiced Lewis, we do not address whether
there was prejudice with respect to the career offender
enhancement.


                                                      8
sentence (though the district court later sentenced him to 405

months imprisonment and 5 years of supervised release), J.A.

278.       In reality, however, Lewis was subject to a maximum life

term (but not a mandatory life term) whether he pled guilty or

was    convicted        after    a   trial.          In   other      words,    Lewis     had

something to gain by going to trial -- the possibility of an

acquittal on some or all of the counts -- but nothing to lose. 3

“This [advice] may well have induced a guilty plea that would

not have been forthcoming if [Lewis] had been correctly told”

that he faced the same maximum sentence whether he went to trial

or pled guilty.          Hammond v. United States, 528 F.2d 15, 18 (4th

Cir. 1975).

       Second,     Lewis       repeatedly     backed      out   of    his     decision    to

plead guilty.           On two separate occasions Lewis agreed to plead

guilty only to change his mind during the Rule 11 colloquy.                              It

wasn’t until the third such hearing that the district court was

able to conduct the colloquy and enter the plea.                                This fact

demonstrates that Lewis was exceedingly reluctant to waive his

right to trial even when he was operating under the erroneous

belief      that   he    was    subject     to   a   mandatory       life     sentence    if

       3
       The possibility of Lewis’s receiving a reduction for
acceptance of responsibility was foreclosed once he made his
unsuccessful motion to withdraw his guilty plea.   See U.S.S.G.
§ 3E1.1(a) cmt. n.3.   Indeed, the district court declined to
make a downward adjustment for acceptance of responsibility for
precisely this reason.


                                                 9
convicted.     In one aborted guilty plea, Lewis told the court, “I

was going to take this plea, you know, because I’m scared for my

life . . . it’s the rest of my life in prison.”

      Third,    Lewis’s      counsel    pressured   him    to   take    the   deal

precisely because he faced a mandatory life sentence if he went

to trial.       Kornbrath told the court on the record, “He was

indicted and convicted of an over fifty gram conspiracy, with a

threatened 851 [sic] information, he’s looking at mandatory life

without   a    possibility       of   parole.     That’s    been     laid   out   in

writing and repeated in meetings with him.                 The stakes are very

high here.”          Zimaroski sent Lewis a letter pushing the same

line:

      First, you are in no position to reject a plea offer
      by the Government.    Should you take this matter to
      trial, pursuant to U.S. Code 21 USC 841(b)(A) [sic],
      upon conviction with two (2) prior drug felonies, you
      would be sentenced to mandatory life without the
      possibility of parole . . .   It does not matter what
      should have, could have, or would have been done with
      a prior conviction; all that matters is that two (2)
      prior drug conviction felonies have become final in
      the records.     With that you become exposed to a
      mandatory life sentence.

J.A. 341 (emphasis added).              Even the district court indicated

that “[i]f the Grand Jury indicts you, it will be for a charge

for   which    you    face   a   mandatory   life   sentence    if    convicted.”

J.A. 491. 4


      4
        We also reject the Government’s contention that                           the
district court’s statements at the plea colloquy cured                            the
(Continued)
                                             10
      Finally, Given these facts, it is indisputable that the

second Strickland prong is satisfied.                   We therefore hold that

the   Appellant’s        Sixth    Amendment        right    to    the        effective

assistance of counsel was violated, and vacate his guilty plea.

                                        B.

      Lewis further argues that he did not receive the effective

assistance of counsel during the district court’s hearing on his

motion to withdraw the guilty plea.                Because we vacate the plea

on other grounds, we decline to address the issue.



                                       III.

      For    the   reasons   given     above,      we   vacate   the    Appellant’s

guilty      plea   and   remand   to    the    district     court      for    further

proceedings.

                                                           VACATED AND REMANDED




defective advice.     It is true that the district court’s
statements   are  relevant  in  determining   whether  prejudice
occurred.   E.g., United States v. Dyess, 478 F.3d 224, 237-38
(4th Cir. 2007). Here, however, nothing the district court said
corrected the error: the court informed Lewis that the maximum
sentence it could impose as a result of his guilty plea was life
in prison; but the court never indicated that Lewis would not
face a mandatory life sentence if convicted at trial.     To the
contrary, it suggested precisely the opposite -- that if he
chose to go to trial, Lewis faced a mandatory life sentence.
J.A. 491.

                                              11
