Mario Bachiller v. United States

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 30, 2011
No. 11-11310
JOHN LEY
Non-Argument Calendar
CLERK
________________________

D.C. Docket Nos. 1:10-cv-21030-AJ; 1:06-cv-20592-AJ-4

MARIO BACHILLER,

llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllll l lRespondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(September 30, 2011)

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
 Mario Bachiller, a federal prisoner, appeals pro se the denial of his motion

to vacate his sentence, 28 U.S.C. § 2255. In Ground 6 of his motion, Bachiller

alleged that trial counsel was ineffective for failing to challenge a jury instruction

to determine the quantity of drugs individually attributable to him and the other

defendants at his trial on drug, robbery, and firearm charges. We granted a

certificate of appealability on the following issue:

Whether the district court violated Clisby v. Jones, 960 F.2d 925, 936
(11th Cir. 1992), by failing to address Bachiller’s claim that his
counsel was ineffective for failing to request a jury instruction
requiring the jury to make a threshold determination of the drug
quantity attributable to each defendant.

In ground 6 of his motion to vacate, Bachiller fairly presented a claim that

his counsel was ineffective for failing to request an instruction for the jury to make

a threshold determination of the drug amount attributable to each defendant at his

trial. The government concedes that the district court did not address this claim.

We disagree with the contention of the government that Bachiller waived his

argument by failing to raise it in his objections to the magistrate judge’s report and

recommendation. Accordingly, we vacate the order denying Bachiller’s motion

and remand with instructions to address the claim that he raised in ground 6.

VACATED AND REMANDED.

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