                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-6569


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LUIS FERNANDO PEREZ-GONZALEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   W. Earl Britt, Senior
District Judge. (5:10-cr-00306-BR-1; 5:13-cv-00352-BR)


Submitted:   November 18, 2014            Decided:   December 3, 2014


Before MOTZ, GREGORY, and WYNN, Circuit Judges.


Vacated in part and remanded; dismissed in part by unpublished
per curiam opinion.


Luis Fernando Perez-Gonzalez, Appellant Pro Se.    Shailika S.
Kotiya, OFFICE OF THE UNITED STATES ATTORNEY, Jennifer P. May-
Parker,   Assistant  United States  Attorney,  Raleigh,   North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Luis     Fernando       Perez-Gonzalez        appeals    the     district

court’s     order    denying    relief    on    his   28    U.S.C.    § 2255    (2012)

motion.     We granted a certificate of appealability on the issue

of     whether       Perez-Gonzalez’s          sentencing        counsel      rendered

ineffective assistance by failing to object to the inclusion of

three criminal history points at Paragraph 10 of the presentence

report (“PSR”).            Having reviewed the parties’ briefs and the

record on appeal, we vacate the portion of the district court’s

order disposing of the claim on which we granted a certificate

of appealability and remand for further proceedings.                           We also

deny    a    certificate        of     appealability        on     Perez-Gonzalez’s

remaining ineffective assistance of counsel claim and dismiss

that portion of the appeal.

             In     his    § 2255    motion,    Perez-Gonzalez       asserted     that

counsel should have objected to a November 30, 1998 conviction

for second-degree burglary set forth in Paragraph 10 of the PSR,

on which the PSR assessed three criminal history points under

U.S.   Sentencing         Guidelines   Manual    (“USSG”)        § 4A1.1(a)    (2010).

As directed by the district court, the Government submitted an

abstract     of     judgment    regarding      California     state    case     number

SC075539A.          The abstract showed that, on November 30, 1998,

Perez-Gonzalez was sentenced on a conviction for burglary of a



                                          2
vehicle. 1    The state court imposed a two-year sentence, with all

but   eight    months   stayed,     to   be   served    consecutively    to   two

uncompleted      sentences    for     revocation    of    probation     in    case

numbers SC073741A and SC073734A, for an aggregate term of two

years and eight months.

              Although the district court noted inaccuracies in the

PSR’s description of the offense in Paragraph 10, it determined

that Perez-Gonzalez was in fact sentenced to thirty-two months’

imprisonment for that conviction, with eight months to be served

consecutively to a two-year sentence imposed upon revocation of

probation, and thus three points were appropriate under USSG

§ 4A1.1(a).      Accordingly, the district court found no prejudice

from counsel’s failure to object to Paragraph 10 of the PSR and

granted the Government’s motion for summary judgment.

              To succeed on his ineffective assistance claim, Perez-

Gonzalez      bears    the   burden      of   showing    that    his   counsel’s

performance      was    constitutionally        deficient       and    that   the

deficient      performance      was       prejudicial.          Strickland     v.

Washington, 466 U.S. 668, 687-88, 691-92 (1984).                 To satisfy the

first prong, he must demonstrate “that counsel’s representation

fell below an objective standard of reasonableness.”                      Id. at


      1
        The abstract also noted Perez-Gonzalez’s April 1998
convictions for second-degree burglary and narcotics possession.



                                          3
688.       To satisfy the second prong, he must establish “that there

is     a     reasonable      probability      that,     but     for     counsel’s

unprofessional errors, the result of the proceeding would have

been different.”          Id. at 694.   Claims of ineffective assistance

of counsel present mixed questions of law and fact, id. at 698,

and are therefore subject to de novo review.                  United States v.

Nicholson, 611 F.3d 191, 205 (4th Cir. 2010).

              Under the Guidelines, a defendant’s criminal history

score is based on sentences imposed for prior convictions.                     In

calculating the criminal history score, three points are added

for a prior sentence of imprisonment exceeding one year and one

month, and two points for a prior sentence of at least sixty

days but less than one year and one month.              USSG § 4A1.1(a)-(b).

A sentence of imprisonment does not include the portion of a

sentence that was suspended.         USSG § 4A1.2(b)(2).

              Here, the abstract of judgment shows that the state

court imposed a two-year term for the second-degree burglary of

a vehicle charge with all but eight months stayed.                    The order

directed that the eight-month sentence be served consecutively

to     the    probation    revocation   sentences,      which    were     already

assessed criminal history points in the PSR.                  Because most of

Perez-Gonzalez’s burglary of a vehicle sentence was suspended,

the eight-month sentence he received should have been assessed

two,    rather    than    three,   criminal   history    points.        See   USSG

                                        4
§ 4A1.1(a)-(b).              The   consecutive        two-year     sentence       for    the

probation revocation sentences was already counted in the PSR

and should not have been counted again in assessing criminal

history    points        for   the     burglary     of   a   vehicle     conviction       in

Paragraph 10.

               Without       the   extra     point,      Perez-Gonzalez’s         criminal

history score would have been reduced from ten to nine, which

would have placed him in Criminal History Category IV rather

than Category V.             USSG ch. 5, pt. A (sentencing table).                      This,

combined       with    his     total    offense     level    of    twenty-one,          would

reduce     his    Guidelines         range    to     fifty-seven       to    seventy-one

months’ imprisonment — below the seventy-eight-month sentence he

actually received on the underlying illegal reentry conviction.

Id.       We     hold,     therefore,        that    Perez-Gonzalez         demonstrated

prejudice       from     counsel’s      failure     to    object    to      the   criminal

history points assessed in Paragraph 10 of the PSR.

               Because the district court made no finding as to the

first prong of Strickland — whether counsel’s failure to object

fell below an objective standard of reasonableness — we vacate

the district court’s order and remand for further proceedings

consistent with this opinion. 2                   We dispense with oral argument


      2
       We offer no opinion as to the ultimate disposition of this
ineffective assistance of counsel claim.



                                              5
because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                   VACATED IN PART AND REMANDED;
                                               DISMISSED IN PART




                               6
