United States of America v. Michael N. Lewis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7475
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL N. LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. John Preston Bailey,
Chief District Judge. (1:05-cr-00108-JPB-DJJ-1; 1:09-cv-00032-
JPB-DJJ)
Argued: March 20, 2012 Decided: April 20, 2012
Before NIEMEYER, GREGORY, and WYNN, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge Niemeyer and Judge Wynn
joined.
ARGUED: David L. Neal, Hillsborough, North Carolina, for
Appellant. Robert Hugh McWilliams, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON
BRIEF: William J. Ihlenfeld, II, United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:
In this case, appellant Michael Lewis filed a habeas
petition pursuant to 28 U.S.C. § 2255 (2008) to vacate his
conviction on grounds that he did not have the effective
assistance of counsel. Finding that the Appellant’s Sixth
Amendment rights were violated, we vacate his guilty plea and
remand to the district court.
I.
Michael Lewis was charged in a federal criminal complaint
with conspiracy to distribute over five grams of cocaine base in
October of 2005. In December of that year, a grand jury
indicted him on four drug-related counts. During plea
negotiations, Lewis’s public defender, Brian Kornbrath, informed
the court that due to Lewis’s two previous drug convictions, he
would face a mandatory life sentence without the possibility of
parole if convicted at trial pursuant to 21 U.S.C. § 841. The
negotiations were also informed by Kornbrath’s assessment that
Lewis was a career offender under the Federal Sentencing
Guidelines. Lewis agreed to plead guilty and signed a plea
agreement. But on the day of the scheduled hearing, Lewis
changed his mind and decided not to plead guilty. Kornbrath
soon filed a motion to withdraw, and attorneys James Zimarowski
and Ann Ballard were appointed to represent Lewis.

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Zimarowski and Ballard continued negotiating with the
Government and, like Kornbrath, they concluded that Lewis would
face a mandatory life sentence if convicted on any count at
trial. Zimarowski further advised Lewis that because of the two
previous drug convictions, he would be considered a career
offender under the Sentencing Guidelines. In February of 2006,
Lewis again returned to court to plead guilty. The district
court explained that pursuant to § 841, he might receive a life
sentence. Following the factual proffer by the Government,
Lewis again changed his mind and indicated that he would not go
forward with the plea.
Zimarowski then wrote his client a letter, informing him
that he was foolish not to accept the plea and that further plea
offers were not likely to come from the Government or be
accepted by the district court. For the third time, Lewis
agreed to plead guilty. The district court held a Rule 11
colloquy and entered the guilty plea on February 21, 2006 -- the
day the trial was set to begin.
Later, before the sentencing hearing, Lewis filed a pro se
motion to withdraw his plea. He discovered after pleading
guilty that he was not a “career offender” under the Sentencing
Guidelines, nor was he subject to a mandatory life sentence
pursuant to § 841. The presentence report made clear that two
of Lewis’s three previous convictions could not count as prior

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felonies under U.S.S.G. § 4B1.1 or 21 U.S.C. § 841 because the
maximum possible punishment for those offenses did not exceed
one year of imprisonment. When the parties returned for the
sentencing hearing, the court first considered the motion to
withdraw. Zimarowski told the court that he had advised against
Lewis’s filing the motion. The court then directed Lewis to
argue the motion himself. It later denied the motion and
sentenced Lewis to 405 months’ imprisonment to be followed by 5
years of supervised release.
Lewis appealed to the Fourth Circuit, arguing that the
district court erred by not permitting him to withdraw his
guilty plea and by improperly participating in plea
negotiations. In an unpublished per curiam opinion, this Court
affirmed the conviction and sentence. In February of 2009,
Lewis filed a § 2255 motion in the district court. The district
court denied Lewis’s request for a certificate of appealability
(“COA”). Following Lewis’s pro se request for a COA from the
Fourth Circuit, this Court issued one in June of 2011.1
II.
Lewis argues that his Sixth Amendment right to the
effective assistance of counsel was violated by his attorney’s
1 We further grant Lewis’s motion, filed November 30, 2011,
to extend the scope of the COA.

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erroneous advice and by the district court’s decision to order
him to argue his own motion to withdraw his guilty plea. We
consider both claims of error in turn.
A.
Lewis contends that he did not have the effective
assistance of counsel when he entered his guilty plea because
his attorneys misadvised him that he qualified for a career
offender sentencing enhancement and a mandatory life sentence.
This Court reviews the legal questions involved in an appeal of
the denial of a § 2255 motion de novo. United States v. Luck,
611 F.3d 183, 186 (4th Cir. 2010). The question of whether
“trial counsel provided ineffective assistance is a mixed
question of fact and law which this Court reviews de novo.” Id.
To make out a claim for ineffective assistance of counsel,
an appellant must satisfy the two-pronged test laid out in
Strickland v. Washington: he must show that counsel’s conduct
“fell below an objective standard of reasonableness” and that he
was prejudiced as a result. 466 U.S. 668, 688, 694 (1984). In
the plea context, the prejudice prong requires the petitioner to
show that there exists “a reasonable probability that, but for
counsel’s errors, [the defendant] would not have pleaded guilty
and would have insisted on going to trial.” Lafler v. Cooper,
566 U.S. ___ (2012) (slip op., at 5) (quoting Hill v. Lockhart,

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474 U.S. 52, 59 (1985)); see also Hooper v. Garraghty, 845 F.2d
471, 475 (4th Cir. 1988).
The crux of Lewis’s ineffective assistance claim revolves
around a particular facet of Ohio law. Lewis was convicted of
two drug felonies in Ohio, one of which was classified as an “F-
5,” which carries a maximum sentence of one year. He was also
convicted of an escape offense, another F-5 felony that also
carries a one-year maximum sentence. Under the Federal
Sentencing Guidelines, a defendant qualifies as a career
offender only if he has been convicted of two prior offenses
punishable by more than one year. U.S.S.G. § 4B1.1; id. § 4B1.2
appl. n.1 (“‘Prior felony conviction’ means a prior adult
federal or state conviction for an offense punishable by death
or imprisonment for a term exceeding one year . . . .”)
(emphasis added). Similarly, a defendant is subject to a
mandatory minimum life sentence under 21 U.S.C.
§ 841(b)(1)(A)(iii) only if he has “two or more prior
convictions for a felony drug offense . . . .” Id. A “felony
drug offense” is an offense that is “punishable by imprisonment
for more than one year.” 21 U.S.C. § 802(44) (2002) (emphasis
added). Thus, while Lewis was convicted of three previous
felonies, they would not have triggered either the career
offender enhancement or the mandatory life sentence because two
of those three felonies were not punishable by more than one

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year in prison. As a result, Lewis’s attorneys misinformed him
when they said he was facing both a career offender enhancement
and a mandatory life sentence.
Lewis’s attorneys’ advice was plainly deficient under
Strickland. The Supreme Court has recognized that in
representing criminal defendants, an attorney’s “reasonable
professional judgment” is given a “heavy measure of deference.”
Strickland, 466 U.S. at 690-91. There is, however, “a
difference between a bad prediction within an accurate
description of the law and gross misinformation about the law
itself.” Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995),
overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214
(4th Cir. 1996) (en banc). While “[w]e cannot expect criminal
defense lawyers to be seers, [] we must demand that they at
least apprise themselves of the applicable law and provide their
clients with a reasonably accurate description of it.” Id.
Here, Lewis’s attorneys gave legal advice predicated on a
plainly false interpretation of federal law. Had they simply
read the applicable federal statutes and correctly applied them
to the facts of this case, they would have discovered their
error. Cf. Rompilla v. Beard, 545 U.S. 374, 383 (2005) (“There
is no need to say more, however, for a further point is clear
and dispositive: the lawyers were deficient in failing to
examine the court file on Rompilla’s prior conviction.”).

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The Government argues that the advice was not deficient
because “[a]ny federal prosecutor or experienced defense
attorney knows that determining a defendant’s prior criminal
record with certainty” is a difficult task. Gov’s Br. 11. But
this is a non sequitur. Lewis’s attorneys accurately determined
Lewis’s prior criminal record, noting that he had been convicted
of three offenses in Ohio. Their error was in failing to
recognize that the two F-5 offenses were not felonies under
federal law for purposes of the career offender enhancement or
§ 841. Thus the Government conflates the question of whether
Lewis’s criminal record was accurately ascertained with the
question of whether Lewis’s attorneys correctly applied black-
letter law.
Turning to the second Strickland prong, we find that Lewis
was prejudiced by counsel’s erroneous advice that § 841 applied
to him.2 First, we note the obvious: the bad advice given to
Lewis effectively negated his reason to plead guilty. Lewis was
told that if he went to trial and was convicted, he would
receive a mandatory life sentence; he chose instead to plead
guilty to all four counts without the benefit of a plea
agreement, J.A. 299, which subjected him to a maximum life
2 Because we find that the deficient advice with respect to
§ 841 independently prejudiced Lewis, we do not address whether
there was prejudice with respect to the career offender
enhancement.

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sentence (though the district court later sentenced him to 405
months imprisonment and 5 years of supervised release), J.A.
278. In reality, however, Lewis was subject to a maximum life
term (but not a mandatory life term) whether he pled guilty or
was convicted after a trial. In other words, Lewis had
something to gain by going to trial -- the possibility of an
acquittal on some or all of the counts -- but nothing to lose.3
“This [advice] may well have induced a guilty plea that would
not have been forthcoming if [Lewis] had been correctly told”
that he faced the same maximum sentence whether he went to trial
or pled guilty. Hammond v. United States, 528 F.2d 15, 18 (4th
Cir. 1975).
Second, Lewis repeatedly backed out of his decision to
plead guilty. On two separate occasions Lewis agreed to plead
guilty only to change his mind during the Rule 11 colloquy. It
wasn’t until the third such hearing that the district court was
able to conduct the colloquy and enter the plea. This fact
demonstrates that Lewis was exceedingly reluctant to waive his
right to trial even when he was operating under the erroneous
belief that he was subject to a mandatory life sentence if
3 The possibility of Lewis’s receiving a reduction for
acceptance of responsibility was foreclosed once he made his
unsuccessful motion to withdraw his guilty plea. See U.S.S.G.
§ 3E1.1(a) cmt. n.3. Indeed, the district court declined to
make a downward adjustment for acceptance of responsibility for
precisely this reason.

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convicted. In one aborted guilty plea, Lewis told the court, “I
was going to take this plea, you know, because I’m scared for my
life . . . it’s the rest of my life in prison.”
Third, Lewis’s counsel pressured him to take the deal
precisely because he faced a mandatory life sentence if he went
to trial. Kornbrath told the court on the record, “He was
indicted and convicted of an over fifty gram conspiracy, with a
threatened 851 [sic] information, he’s looking at mandatory life
without a possibility of parole. That’s been laid out in
writing and repeated in meetings with him. The stakes are very
high here.” Zimaroski sent Lewis a letter pushing the same
line:
First, you are in no position to reject a plea offer
by the Government. Should you take this matter to
trial, pursuant to U.S. Code 21 USC 841(b)(A) [sic],
upon conviction with two (2) prior drug felonies, you
would be sentenced to mandatory life without the
possibility of parole . . . It does not matter what
should have, could have, or would have been done with
a prior conviction; all that matters is that two (2)
prior drug conviction felonies have become final in
the records. With that you become exposed to a
mandatory life sentence.
J.A. 341 (emphasis added). Even the district court indicated
that “[i]f the Grand Jury indicts you, it will be for a charge
for which you face a mandatory life sentence if convicted.”
J.A. 491.4
4 We also reject the Government’s contention that the
district court’s statements at the plea colloquy cured the
(Continued)

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Finally, Given these facts, it is indisputable that the
second Strickland prong is satisfied. We therefore hold that
the Appellant’s Sixth Amendment right to the effective
assistance of counsel was violated, and vacate his guilty plea.
B.
Lewis further argues that he did not receive the effective
assistance of counsel during the district court’s hearing on his
motion to withdraw the guilty plea. Because we vacate the plea
on other grounds, we decline to address the issue.
III.
For the reasons given above, we vacate the Appellant’s
guilty plea and remand to the district court for further
proceedings.
VACATED AND REMANDED
defective advice. It is true that the district court’s
statements are relevant in determining whether prejudice
occurred. E.g., United States v. Dyess, 478 F.3d 224, 237-38
(4th Cir. 2007). Here, however, nothing the district court said
corrected the error: the court informed Lewis that the maximum
sentence it could impose as a result of his guilty plea was life
in prison; but the court never indicated that Lewis would not
face a mandatory life sentence if convicted at trial. To the
contrary, it suggested precisely the opposite -- that if he
chose to go to trial, Lewis faced a mandatory life sentence.
J.A. 491.

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