United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 23, 2005
June 10, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 04-50633
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ISMAEL HOLGUIN HERRERA,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before WIENER, DeMOSS, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Appellant Ismael Hoguin Herrera challenges the district
court’s denial of his motion to vacate his sentence. After
considering Herrera’s argument and reviewing the record, the
court reverses the district court’s judgment and remands this
case for an evidentiary hearing on Herrera’s ineffective
assistance of counsel claim.
A jury convicted Herrera of conspiracy to distribute
cocaine, aiding and abetting an attempt to possess cocaine with
intent to distribute, and being an unlawful drug user in
possession of a firearm. The district court sentenced Herrera to
1
concurrent 78-month prison terms on each count. Initially, a
panel of this court affirmed the drug convictions but reversed
the firearm conviction.1 On en banc rehearing, however, the
court affirmed the firearm conviction.2
Herrera filed a § 2255 motion in the district court alleging
that his convictions should be reversed because he had not had
the effective assistance of counsel. Herrera argued that his
attorney incorrectly advised him to reject the Government’s plea
offer, which would have subjected him to a 48-month maximum
sentence under the sentencing guidelines. He asserted that his
attorney’s advice was based on the attorney’s misunderstanding
that he faced only a 51-month maximum guideline sentence if he
was convicted at trial. In actuality, Herrera faced a sentencing
range of 78 to 97 months. Herrera maintained that he would have
accepted the plea offer had he known his true sentencing exposure
at trial. The district court rejected Herrera’s claim.
Herrera filed a timely notice of appeal from the district
court’s judgment and asked to proceed IFP on appeal. The
district court granted Herrera leave to proceed IFP and a
certificate of appealability on “whether trial counsel was
ineffective because he allegedly misrepresented the ‘maximum
1
United States v. Herrera, 289 F.3d 311, 325 (5th Cir.
2002).
2
United States v. Herrera, 313 F.3d 882, 885 (5th Cir. 2002)
(en banc).
2
exposure’ [Herrera] faced under the sentencing guidelines if
convicted.”
This court “review[s] a district court’s conclusions with
regard to a petitioner’s § 2255 claim of ineffective assistance
of counsel de novo.”3 To prevail on an ineffective-assistance-
of-counsel claim, Herrera must satisfy the two-part test
enunciated in Strickland v. Washington.4 First, Herrera must
demonstrate that his attorney’s performance fell below an
objective standard of reasonableness.5 This court has described
that standard as “requiring that counsel research relevant facts
and law, or make an informed decision that certain avenues will
not be fruitful.”6 Second, Herrera must also prove that he was
prejudiced by his attorney’s substandard performance.7 “[T]o
prove prejudice, [Herrera] must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”8
One of the most important duties of an attorney representing
3
United States v. Conley, 349 F.3d 837, 839 (5th Cir. 2003).
4
466 U.S. 668, 687 (1984).
5
Strickland, 466 U.S. at 687.
6
Conley, 349 F.3d at 841 (internal quotation marks and
citations omitted).
7
Strickland, 466 U.S. at 687.
8
Conley, 349 F.3d at 841 (internal quotation marks and
citations omitted).
3
a criminal defendant is advising the defendant about whether he
should plead guilty.9 An attorney fulfills this obligation by
informing the defendant about the relevant circumstances and the
likely consequences of a plea.10 Apprising a defendant about his
exposure under the sentencing guidelines is necessarily part of
this process. A defendant cannot make an intelligent choice
about whether to accept a plea offer unless he fully understands
the risks of proceeding to trial.11 “Failing to properly advise
the defendant of the maximum sentence that he could receive falls
below the objective standard required by Strickland.”12
In this case, the district court did not determine whether
Herrera’s attorney misadvised Herrera about his sentencing
exposure. Instead, the court accepted as true Herrera’s
allegation that his attorney informed him that he faced a maximum
guideline sentence of 51 months. Noting that Herrera received a
sentence “only” 27 months higher than the maximum estimated by
his lawyer, the district court determined that the attorney had
not performed deficiently.13
9
Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).
10
Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995).
11
Id. at 1171.
12
Id.
13
Those 27 months produced a sentence approximately 53%
greater than the maximum purportedly estimated by counsel and
could have been 90% greater had the court imposed the sentence at
the top of the sentencing guidelines range instead of at the
4
In reaching its conclusion, the district court relied on
this court’s decision in United States v. Ridgeway.14 There,
defendant Ridgeway complained that his trial attorney advised him
that he would receive only four or five years of prison time even
though the charged offense had a mandatory minimum sentence of
120 months.15 Ridgeway asserted that he would not have pleaded
guilty if he had known that he faced at least 120 months in
prison.16 This court, however, determined that Ridgeway did not
show that he was prejudiced by his attorney’s alleged deficiency
because he did not show that he would have received a
“significantly less harsh” sentence.17 The court explained that
the record was clear that the prosecutor would have only
permitted Ridgeway to plead guilty to the indictment.18 Thus
regardless of whether he pleaded guilty or was convicted by a
jury, Ridgeway faced at least 120 months in prison because of the
mandatory minimum sentence. The court reasoned that because 120
months was not “significantly less harsh” than Ridgeway’s actual
sentence of 121 months, Ridgeway could demonstrate prejudice only
bottom.
14
321 F.3d 512 (5th Cir. 2003).
15
Ridgeway, 321 F.3d at 513.
16
Id.
17
Id. at 514.
18
Id. at 515.
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by proving that the sentencing court could have and would have
departed below the statutory minimum sentence.19
Unlike defendant Ridgeway who regardless of the purported
misinformation would have known how much prison time he faced
before entering his plea, Herrera faced a sentencing range under
the guidelines where the precise advice of counsel was essential
to deciding whether to accept the Government’s plea offer. If
the attorney actually advised Herrera that he faced a maximum of
51 months of prison time, Herrera did not fully understand the
risks of going to trial. An attorney who underestimates his
client’s sentencing exposure by 27 months performs deficiently
because he does not provide his client with the information
needed to make an informed decision about accepting a plea offer
or going to trial.20
Not only would the attorney’s assistance be deficient under
these circumstances, a 27-month increase in a sentence
constitutes prejudice under the second prong of Strickland.
Here, the district court sentenced Herrera at the bottom of the
guidelines range; thus, the attorney’s purported underestimation
resulted in a sentence that was 53% more than the sentence
offered under the plea agreement. Unlike Ridgeway where the
mandatory minimum sentence was not significantly less harsh than
19
Id.
20
See Teague, 60 F.3d at 1171.
6
the actual sentence, the 51-month sentence purportedly advanced
by Herrera’s attorney is significantly less harsh than Herrera’s
actual sentence of 78 months. Thus, Herrera’s situation is very
different from defendant Ridgeway’s case.
In addition, this court no longer uses the “significantly
less harsh” test.21 One month after the district court rejected
Herrera’s claim, this court adopted the “any amount of jail time”
test in United States v. Grammas.22 This test originated from
the Supreme Court’s decision in Glover v. United States where the
Court explained that any amount of additional jail time has
significance under Strickland.23 This court determined that the
“any amount of jail time” test applies where the defendant was
convicted after the Supreme Court’s decision in Glover.24 The
court further held that grossly underestimating a defendant's
exposure under the sentencing guidelines constitutes ineffective
assistance of counsel.25 In Grammas, however, the record clearly
showed that the defendant’s attorney miscalculated his client’s
21
See United States v. Grammas, 376 F.3d 433, 439 (5th Cir.
2004) (adopting the “any amount of jail time” test).
22
Id.
23
Glover v. United States, 531 U.S. 198, 203 (2001).
24
Grammas, 376 F.3d at 438.
25
Id. at 436-37.
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sentencing exposure.26
Here, the court cannot simply apply Grammas to Herrera’s
claim. First, the district court did not determine whether
Herrera’s attorney miscalculated Herrera’s sentencing exposure.
The record contains only Herrera’s assertion that his attorney
told him that he faced 51 months. Second, Herrera was convicted
before Glover was decided. Thus, resolving Herrera’s claim on
the present record requires this court to decide whether a
presumed 27-month miscalculation constitutes ineffective
assistance of counsel. A better alternative exists.
Rather than decide the question based on an assumption, the
better approach is to have the district court conduct an
evidentiary hearing. An evidentiary hearing will confirm or
dispel Herrera’s allegation that his attorney misrepresented the
prison time he faced and whether Herrera relied on those
misrepresentations in rejecting the Government’s plea offer. A
remand will allow the district court to develop a complete
record, make appropriate fact findings, and grant relief in the
first instance if evidence supports Herrera’s contentions.
Consequently, the court REVERSES the district court’s order
denying habeas relief and REMANDS this cause for an evidentiary
26
See id. at 437 (observing that the defendant’s trial
attorney conceded that he was unfamiliar with the sentencing
guidelines and that he misinformed his client that he faced only
6 to 12 months if he was convicted when in actuality the
defendant was subject to a range of 70 to 87 months).
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hearing.
REVERSED & REMANDED.
9