concurring and dissenting:
I agree with the majority that the district court erred in vacating defendant Blackwell’s guilty plea. I disagree, however, with the majority’s reversal of the district court’s order vacating Blackwell’s sentence. I would affirm vacation of Blackwell’s sentence and remand for resentencing.
District court’s reliance on misinformation at time of sentencing
In his § 2255 motion, Blackwell argued his sentence was invalid because, at the time it was imposed, the district court had been misinformed about the status of codefendant Cecala’s case. Specifically, Blackwell noted the prosecutor misinformed the court that Cecala’s case was likely to go to trial when, in fact, Cecala had pled guilty and received a sentence of probation. In reviewing and granting Blackwell’s § 2255 motion, the court focused exclusively (and mistakenly) on the disparity between the sentence Cecala received and the sentence originally imposed on Blackwell. In so doing, the court overlooked the fact that its original sentencing decision was impacted by its belief that Ceca-la’s case was proceeding to trial, and its corresponding belief that Blackwell had not yet given the full measure of his cooperation to the government. As outlined below, it is precisely those grounds that justify vacation of Blackwell’s original sentence and entitle him to resentencing based upon correct information.
An error in sentencing can provide the basis for a collateral attack under § 2255 only if it is an error “of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.” United States v. Addonizio, 442 U.S. 178, *958186, 99 S.Ct. 2235, 2241, 60 L.Ed.2d 805 (1979). Although research has not produced any eases that directly address how to determine when misinformation satisfies this “fundamental character” test, there are several cases which hold (in the context of § 2255 proceedings) that a sentence must be set aside if the defendant can show the challenged information was inaccurate and the sentencing court relied on the misinformation in imposing the sentence. See United States v. Kovic, 830 F.2d 680, 685 (7th Cir.1987); Jones v. United States, 783 F.2d 1477, 1480 (9th Cir.1986); United States v. Polselli, 747 F.2d 356, 358 (6th Cir.1984); United States v. Brown, 715 F.2d 387, 389 (8th Cir.1983); see also United States v. Larson, 112 F.3d 600, 605-06 (2d Cir.1997) (sentencing court may not rely on misinformation in imposing sentence); United States v. Pless, 982 F.2d 1118, 1127 (7th Cir.1992) (due process entitles defendant to fair sentencing procedures, especially right to be sentenced on basis of accurate information); United States v. Barnhart, 980 F.2d 219, 225 (3d Cir.1992) (sentence based upon misinformation violates defendant’s due process rights if misinformation is of constitutional magnitude and has been given specific consideration by sentencing judge); United States v. Silverman, 976 F.2d 1502, 1508 (6th Cir.1992) (en banc) (sentence may not be imposed on basis of material misinformation); United States v. Helton, 975 F.2d 430, 434 (7th Cir.1992) (sentence will be vacated only if defendant shows misinformation was provided to sentencing court and sentencing court relied on misinformation in determining sentence); United States v. Johnson, 911 F.2d 1394, 1402 (10th Cir.1990) (during sentencing, district court may not rely on misinformation of constitutional magnitude); United States v. Sunrhodes, 831 F.2d 1537, 1542 (10th Cir.1987) (“Due process insures that a defendant will not be sentenced on the basis of ‘misinformation of a constitutional magnitude.’ ”). Based upon these cases, I believe it is logical to conclude the “fundamental character” test is met if defendant can satisfy both of the above-referenced prongs (i.e., the information was false and was relied upon by the district court in imposing sentence).
As applied here, Blackwell can easily satisfy this two-prong test. First, both Blackwell and the government agree the information provided to the district court concerning the status of Cecala’s case was inaccurate. Second, it is apparent from reviewing the record on appeal that the misinformation affected the original sentence imposed by the district court. At the original sentencing hearing, the court sentenced Blackwell to a term of imprisonment of fifteen months, but expressly indicated it would entertain a subsequent Rule 35 motion after Blackwell fulfilled his responsibilities to the government by testifying against Cecala:
There is one other thing that I didn’t tell you. I’m a great believer in the carrot- and-stick approach. You’ve got some cooperating yet to do with the United States, and if you cooperate further, and that means testifying in court in Salt Lake City against Shelly [Cecala], it isn’t going to be pleasant, but if you do it, you can come back to me, you need to file your Rule 35 motion, and I’ll consider a further reduction.
App. I, Doc. 44 (exhibit). Based upon these statements, I believe it is reasonable to conclude the court intended to reevaluate the significance and usefulness of Blackwell’s assistance, and possibly lower his sentence, after completion of Cecala’s case. See Fed. R.Crim.P. 35(b) (allowing sentencing court to “reduce a sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense”). From these statements, one could also argue the court wanted to impose a lower sentence at the time of sentencing, but withheld the lower sentence as an anticipated reward to Blackwell for his future cooperation in the prosecution of Cecala’s case.
Although the government contends the district court could not have imposed a lower sentence had it been privy to accurate information concerning the status of Cecala’s case, this is incorrect. Prior to the initial sentencing, and in accordance with the terms of the plea agreement, the government filed a motion pursuant to U.S.S.G. § 5K1.1 asking the court to reduce Blackwell’s sentence because of his substantial assistance to the government. Section 5K1.1 gives a district court substantial discretion to depart down*959ward from the guidelines after considering a nonexhaustive list of relevant factors including the “significance and usefulness” of the defendant’s assistance. The extent of a departure under § 5K1.1 is within the sentencing court’s sound discretion. United States v. Wills, 35 F.3d 1192, 1196-97 (7th Cir.1994); United States v. Johnson, 33 F.3d 8, 9 (5th Cir.1994) (sentencing court is free to grant departure greater than recommended by government).
Here, because the district court was informed that Cecala’s case was still pending and was likely to go to trial1, the district court did not know that Cecala: (1) had entered into a plea agreement, (2) apparently agreed to cooperate with and provide information to the government, and (3) received a sentence of probation. For the reasons outlined in the majority opinion, the third factor was clearly irrelevant to Blackwell’s sentencing. However, the remaining two factors could have legitimately affected the sentence imposed on Blackwell, irrespective of the' sentence that Cecala received. Specifically, in deciding how far to depart under § 5K1.1, the court could have considered the fact that, because of Blackwell’s assistance and willingness to testify, Cecala entered into a plea agreement and agreed to testify against people even higher up in the drug organization. Stated differently, the court could have reasonably concluded Blackwell’s assistance was more significant and useful than if Cecala had not pled guilty and agreed to assist the government.
Because Blackwell was sentenced on the basis of material misinformation, he is entitled to have his sentence vacated and receive a new sentencing hearing.
Ineffective assistance of counsel at time of sentencing
Because I conclude Cecala’s decision to plead guilty and cooperate with the government could have reasonably impacted the district court’s sentencing decision with respect to Blackwell, I further conclude failure of Blackwell’s counsel to investigate and discover the outcome of Cecala’s case was deficient and prejudicial to Blackwell. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Brewer v. Reynolds, 51 F.3d 1519 (10th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 936, 133 L.Ed.2d 862 (1996).
Conclusion
I concur in part and dissent in part. I concur in reversing the district court’s vacation of Blackwell’s guilty plea, but dissent from the majority’s reversal of the district court’s vacation of Blackwell's sentence. I would affirm the district court’s order vacating Blackwell’s sentence and remand this matter for resentencing consistent with the original plea agreement.
. Section 5K1.1 clearly implies the government’s motion for downward departure is supposed to evaluate assistance rendered by the defendant. In turn, the district court is directed to give ”[s]ubstantial weight ... to the government’s evaluation of the extent of the defendant’s assistance.” Commentary Note 2. In this case, I question how the government's motion could have properly and sufficiently evaluated the assistance rendered by Blackwell when it was unknown to the prosecutor that Cecala had pled guilty. Notably, I find no indication in the record that the government ever supplemented its motion to accurately reflect the outcome of Ceca-la’s case. Arguably, by indicating it would entertain a Rule 35 motion, the court recognized it could not fully evaluate the extent and usefulness of Blackwell’s assistance until after completion of Cecala’s case.