IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20197
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FLORES SILVA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CR-H-89-187-1)
_________________________________________________________________
January 14, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Pro se appellant Jose Flores Silva appeals the district
court’s denial of his motion under 28 U.S.C. § 2255 to vacate, set
aside or correct his sentence. We conclude that because Silva
received constitutionally ineffective assistance of counsel at
sentencing, he suffered the prejudice of a sentence that violated
the Ex Post Facto Clause of the Constitution. Although there are
real questions as to whether the Ex Post Facto claim, as a
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
constitutional claim standing alone, has been preserved, there is
no question but that the ineffective assistance of counsel claim,
based on the failure of counsel to object to the sentence, has been
preserved for appeal. For reasons given in the opinion, we
therefore vacate Silva’s sentence in his 1990 federal conspiracy
conviction and remand for resentencing, based on counsel’s
ineffectiveness in failing to object to the sentence.
I
Silva’s various convictions and sentences arise out of his
involvement in an extensive drug distribution conspiracy. A
February 1989 search of Silva’s residence revealed substantial
amounts of marijuana and cocaine, and fourteen firearms. Silva was
immediately charged and convicted in Texas state court for
possession of illegal drugs. In June 1989, Silva pled guilty to a
federal charge of illegal possession of firearms by a felon.
Before sentencing in the state court case, Silva was sentenced
first on the federal charge, in November 1989. He received 115
months imprisonment. One month later, Silva was sentenced in the
state case, receiving 20 years imprisonment. Silva then began
serving his state sentence; his federal sentence would commence
only when he was released from state custody. Next, in early 1990,
Silva was indicted in federal court along with 27 co-defendants on
various drug-related conspiracy charges. In August 1990, while
2
Silva was still serving his state sentence, Silva was sentenced to
137 months imprisonment for the federal conspiracy convictions.
The sentencing court ordered that this 137-month sentence run
concurrent with the previous federal sentence, but consecutive to
the state sentence that Silva was then serving.
Silva’s conviction and sentence in the federal conspiracy case
were affirmed by this court in a consolidated appeal. United
States v. Maseratti, 1 F.3d 330 (5th Cir. 1993), cert denied, 114
S.Ct. 1096, 1552, and 115 S.Ct. 282 (1994). This motion under
§ 2255 followed. In his petition, Silva alleges a variety of
defects in his federal sentences. Silva argues that his federal
sentences should run concurrent to his state sentence, that his
115-month sentence in the felon-in-possession case represented
“impermissible double-counting,” and that his counsel was
ineffective for failing to raise these claims to the sentencing
courts or on direct appeal of his conviction and sentence.
II
Relief under § 2255 is reserved for transgressions of
constitutional rights and allegations that the sentencing court
lacked jurisdiction. United States v. Walker, 68 F.3d 931, 934
(5th Cir. 1994), cert denied, 116 S.Ct. 1056 (1995); United States
v. Acklen, 47 F.3d 739, 741 (5th Cir. 1995). Furthermore, Silva
may not raise such issues for the first time on collateral review
3
unless he demonstrates both “cause” for his failure to raise these
arguments on direct review and “actual prejudice” resulting from
the alleged error in sentencing. United States v. Shaid, 937 F.2d
228, 231-32 (5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076
(1992).
A
Silva’s ability to demonstrate cause and prejudice is
intertwined with the merits of his allegations. Silva argues that
the federal sentencing courts should have applied a Guideline
provision that required his sentence to run concurrent with prior
sentences if the underlying offense arose out of the same
transaction as a sentence then being served. The provision Silva
cites is from Guideline § 5G1.3 of the 1987 version of the
Sentencing Guidelines; this version was effective until November 1,
1989, when the 1989 amendments became effective.1 Generously
construed in deference to his pro se status, Silva argues that he
was incorrectly sentenced under a later version of the Guidelines
1
The 1987 version of § 5G1.3 stated:
If at the time of sentencing, the defendant is already
serving one or more unexpired sentences, then the
sentences for the instant offense(s) shall run
consecutively to such unexpired sentences, unless one or
more of the instant offense(s) arose out of the same
transactions or occurrences as the unexpired sentences.
In the latter case, such instant sentences and the
unexpired sentences shall run concurrently, except to the
extent otherwise required by law.
4
that produced a longer sentence; this argument raises a
constitutional claim that his sentence violated the Ex Post Facto
Clause.
As to his first federal sentence--for the felon-in-possession
conviction--Silva’s argument fails. The version of § 5G1.3 Silva
relies upon, by its express terms, applies only if the defendant is
“already serving one or more unexpired sentences” (emphasis added),
and Silva had not even been sentenced in the state case when his
first federal sentence was imposed. However, at the time that
Silva was sentenced in the federal conspiracy case, he was serving
the unexpired state sentence on a concededly related conviction.
The constitutional guarantee against ex post facto punishment
prevents a criminal defendant from being subjected to a more severe
punishment for his crime than was allowed by law at the time the
crime was committed. The criminal activity that led to Silva’s
1990 federal conspiracy conviction occurred in July of 1989,
according to the indictment in that case. In July of 1989, the
1987 version of the federal Sentencing Guidelines was in effect,
but by the time Silva was sentenced in the case, the 1989 verion
had become effective. Therefore, Silva should not have been
sentenced under the 1989 version of the Guidelines if the 1989
version produced a sentence that was longer than the sentence that
would have been required under the 1987 version.
5
Guideline § 5G1.3 of the 1987 version of the federal
Sentencing Guidelines would have required that Silva’s sentence in
the conspiracy case run concurrently with both Silva’s other
federal sentence and his state sentence. The 1989 Guidelines,
under which Silva was sentenced, did not. Accordingly, the order
that Silva’s 137-month conspiracy sentence run consecutive to his
state sentence violated the Ex Post Facto Clause because it
subjected Silva to as much as 22 months additional imprisonment.
B
The government insists on appeal that even if Silva’s sentence
violated the Ex Post Facto Clause, Silva may not now raise this
claim because he failed to raise it clearly to the district court.
The government argues that we may only grant relief if the district
court committed “plain error” under Rule 52(b), and that we cannot
find that the district court committed plain error in its review of
Silva’s habeas petition for failing to accept an argument that was
not clearly presented.
We need not address the government’s contention that
Rule 52(b) precludes relief on the Ex Post Facto claim, however,
because Silva has consistently argued that he received ineffective
assistance of counsel at his sentencing hearing. We agree, and
remand for resentencing on that ground.
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In order to demonstrate that he received ineffective
assistance of counsel, Silva must demonstrate both that his
counsel’s performance during sentencing was deficient, and that he
was prejudiced by the deficient representation. Strickland v.
Washington, 104 S.Ct. 2052, 2063-64 (1984). Although Silva must
overcome “a strong presumption that counsel’s conduct [fell] within
the wide range of reasonable professional assistance,” id., we
conclude that Silva has made an adequate showing. Where a criminal
defendant’s attorney fails to challenge the application of an
incorrect version of the Sentencing Guidelines, and that failure
results in a sentence that violates the Ex Post Facto Clause, the
criminal defendant is deprived of effective assistance of counsel.
Accordingly, we hold that Silva has demonstrated both “cause”
and “prejudice” under § 2255. The ineffective assistance of
counsel that Silva received at sentencing is cause for his failure
to raise these issues on direct appeal. The constitutional defect
in his sentencing subjected Silva to as many as 22 months
additional imprisonment, and Silva has therefore suffered actual
prejudice from the error in his federal conspiracy sentence.2
III
2
We have reviewed Silva’s claim concerning “impermissible
double-counting” in his felon-in-possession sentence, and we find
that the district court properly resolved this claim under our
decision in United States v. Gonzales, 996 F.2d 88 (5th Cir. 1993).
7
In conclusion, then, we REVERSE the district court’s denial of
Silva’s petition under § 2255, VACATE Silva’s sentence for the
federal conspiracy convictions, and REMAND to the district court
for resentencing consistent with this opinion.
REVERSED, VACATED in part, and REMANDED.
8