[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 20, 2007
No. 05-13535 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 04-80339-CV-WJZ & 01-08074 CR-WJZ
MILTON SMITH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 20, 2007)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
On March 25, 2002, petitioner pled guilty to Count I of a two-count
indictment, which charged him with conspiring in violation of 21 U.S.C. § 846 to
possess with intent to distribute a mixture and substance containing a detectable
amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). On April 11, 2003, the
district court sentenced him to prison for a term of 108 months and a five-year term
of supervised release.
On April 12, 2004, petitioner moved the district court to vacate his sentence
pursuant to 28 U.S.C. § 2255 on the ground that his attorney rendered ineffective
assistance of counsel by failing to object to the imposition of the five-year term of
supervised release. The district court denied his motion and his application for a
certificate of appealability (“COA”). We likewise denied his application for a
COA, and petitioner then petitioned the Supreme Court for a writ of certiorari. In
response to his petition, the Solicitor General confessed error: counsel rendered
ineffective assistance in not calling to the district court’s attention the fact that the
five-year term of supervised release the court imposed exceeded the two-three-year
range prescribed by the Sentencing Guidelines, specifically U.S.S.G. §
5D1.2(a)(2).1 On January 8, 2007, the Court granted his petition, vacated our
judgment, and remanded the case with the instruction that we grant a COA so we
1
Count I of the indictment alleged a Class C felony, in that it described an offense
involving “a detectable amount of cocaine.” At sentencing, the court’s probation officer
misinformed the court that petitioner’s offense was a Class B felony that called for a term of
supervised release of three-five years.
2
could consider the Solicitor General’s confession of error. We granted the COA,
and in its reply brief, the Government has confessed the error the Solicitor General
pointed out. We therefore vacate the district court’s denial of petitioner’s § 2255
motion and remand the case for resentencing.
SO ORDERED.
3