IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20982
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN NELSON MAXWELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-1419
USDC No. H-90-CR-97-1
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August 2, 1999
Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Bryan Nelson Maxwell, federal prisoner #50539-079, appeals
from the denial of his motion for relief pursuant to 28 U.S.C.
§ 2255. We granted a certificate of appealability (COA) on
Maxwell’s claim that trial counsel rendered ineffective
assistance by misinforming Maxwell of the sentence he faced if he
proceeded to trial and denied a COA on the remaining issue
regarding the alleged ineffectiveness of appellate counsel. We
GRANT Maxwell’s motion to correct his reply brief.
*
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that this opinion should not be published and is not precedent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.
No. 97-20982
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Maxwell argues that he was denied effective assistance of
counsel regarding a plea offer when trial counsel misinformed him
of the sentence he faced if he proceeded to trial. He also
argues that the district court had abused its discretion by
failing to hold an evidentiary hearing.
The record does not show conclusively that Maxwell is not
entitled to relief. First, the record does not refute Maxwell’s
assertion that there was a plea offer. It cannot be determined
from the present record whether counsel advised Maxwell properly
of the statutory penalties he faced or of the potential sentence
he faced if the court found that he was a career offender. See
Beckham v. Wainwright, 639 F.2d 262, 266 (5th Cir. 1981); 28
U.S.C. § 841(b)(1)(B)(viii); U.S.S.G. § 4B1.1. A review of the
sentencing guidelines indicates that counsel could not have based
his advice that Maxwell faced a possible sentence of 14- to 18-
years solely on Maxwell’s criminal history and the amount of
drugs purchased by the cooperating individual.
Second, we cannot say that the record does not suggest a
reasonable probability that Maxwell would have received a
significantly less severe sentence had Maxwell accepted the
Government’s plea offer. See Teague v. Scott, 60 F.3d 1167, 1172
(5th Cir. 1995). We express no opinion regarding whether Maxwell
actually received ineffective assistance of counsel.
Because the record did not conclusively establish that
Maxwell was entitled to no relief, he was entitled to an
evidentiary hearing on his contention. United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). We therefore
No. 97-20982
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vacate the order denying relief on Maxwell’s claim that counsel
was ineffective regarding his advice to reject the plea offer and
proceed to trial and remand that claim for further proceedings
consistent with this order.
VACATED AND REMANDED; MOTION GRANTED.