United States v. Maxwell

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-20982 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRYAN NELSON MAXWELL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CV-1419 USDC No. H-90-CR-97-1 - - - - - - - - - -

August 2, 1999

Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Bryan Nelson Maxwell, federal prisoner #50539-079, appeals

from the denial of his motion for relief pursuant to 28 U.S.C.

§ 2255. We granted a certificate of appealability (COA) on

Maxwell’s claim that trial counsel rendered ineffective

assistance by misinforming Maxwell of the sentence he faced if he

proceeded to trial and denied a COA on the remaining issue

regarding the alleged ineffectiveness of appellate counsel. We

GRANT Maxwell’s motion to correct his reply brief.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-20982 -2-

Maxwell argues that he was denied effective assistance of

counsel regarding a plea offer when trial counsel misinformed him

of the sentence he faced if he proceeded to trial. He also

argues that the district court had abused its discretion by

failing to hold an evidentiary hearing.

The record does not show conclusively that Maxwell is not

entitled to relief. First, the record does not refute Maxwell’s

assertion that there was a plea offer. It cannot be determined

from the present record whether counsel advised Maxwell properly

of the statutory penalties he faced or of the potential sentence

he faced if the court found that he was a career offender. See

Beckham v. Wainwright, 639 F.2d 262, 266 (5th Cir. 1981); 28

U.S.C. § 841(b)(1)(B)(viii); U.S.S.G. § 4B1.1. A review of the

sentencing guidelines indicates that counsel could not have based

his advice that Maxwell faced a possible sentence of 14- to 18-

years solely on Maxwell’s criminal history and the amount of

drugs purchased by the cooperating individual.

Second, we cannot say that the record does not suggest a

reasonable probability that Maxwell would have received a

significantly less severe sentence had Maxwell accepted the

Government’s plea offer. See Teague v. Scott, 60 F.3d 1167, 1172

(5th Cir. 1995). We express no opinion regarding whether Maxwell

actually received ineffective assistance of counsel.

Because the record did not conclusively establish that

Maxwell was entitled to no relief, he was entitled to an

evidentiary hearing on his contention. United States v.

Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). We therefore No. 97-20982 -3-

vacate the order denying relief on Maxwell’s claim that counsel

was ineffective regarding his advice to reject the plea offer and

proceed to trial and remand that claim for further proceedings

consistent with this order.

VACATED AND REMANDED; MOTION GRANTED.