UNPUBLISHED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Vacated in part and remanded; dismissed in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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
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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.
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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
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§ 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.
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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
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