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United States v. Cleveland

filed*fn*: March 30, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN SIDNEY CLEVELAND, AKA BYTHOLEMEW SIDNEY EDBERT AKA "SNAKE", DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Washington. D.C. Nos. CV-90-00548-JET, CR-90-01013-JET. Jack E. Tanner, District Judge, Presiding.

Before: Browning, Tang, and Wiggins, Circuit Judges.

MEMORANDUM

John Sidney Cleveland, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. Cleveland contends that he was denied effective assistance of counsel. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and we vacate and remand.

A. Challenge to Sentence

Cleveland contends that his counsel was ineffective because he failed to show and to discuss with Cleveland the presentence investigation report before the sentencing hearing. This contention has merit.

To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance was deficient and that the deficient performance prejudiced his or her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice is established if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; see Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (under 28 U.S.C. 2255, "'unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing . . ., determine the issues and make findings of fact and Conclusions of law'").

Here, the sentencing Judge asked only Cleveland's counsel whether he had seen the presentence report; the Judge did not inquire whether Cleveland had seen the presentence report. While it is clear from the record that Cleveland's counsel reviewed the report, there is no indication that he showed it to Cleveland or discussed it with him.

The district court erred by denying Cleveland's section 2255 motion without holding an evidentiary hearing. First, counsel's alleged failure to show Cleveland the presentence report may constitute deficient performance. See Fed. R. Crim. P. 32(c)(3)(A); cf. United States v. Maree, 934 F.2d 196, 200 (9th Cir. 1991) (to satisfy the requirements of Fed. R. Crim. P. 32(a)(1)(A), sentencing Judge must have "reasonably relied on evidence indicating that a defendant has read the presentence report and discussed it with counsel"). Second, Cleveland alleges that he was prejudiced by counsel's failure to show him the presentence report because he was unable to challenge factual inaccuracies contained in the report. See Fed. R. Crim. P. 32(c)(3)(D). Accordingly, we vacate and remand for an evidentiary hearing on this issue.*fn1

Moreover, on appeal, Cleveland contends that his attorney was ineffective because he failed to argue for a downward adjustment to Cleveland's offense level for acceptance of responsibility under section 3E1.1 of the United States Sentencing Guidelines, and he did not object to the government's failure to recommend that Cleveland receive this downward adjustment.*fn2 Our remand of this case will afford the district court an opportunity to consider these issues.*fn3

VACATED AND REMANDED.

Disposition

VACATED AND ...


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