United States of America v. Barry Lloyd Curtis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5095
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY LLOYD CURTIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00016-LHT-1)
Submitted: August 20, 2009 Decided: January 6, 2010
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Claire J. Rauscher, Ross H. Richardson, Erin K. Taylor, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, Charlotte, North Carolina,
for Appellant. Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Barry Lloyd Curtis timely appeals from the fifty-seven
month sentence imposed after his guilty plea to one count of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006). On appeal, Curtis contends, and the
Government concedes, that trial counsel was ineffective for
failing to object to the erroneous Guidelines range in the
Presentence Investigation Report (“PSR”). We affirm Curtis’s
conviction, but vacate his sentence and remand for resentencing.
A defendant may raise a claim of ineffective
assistance of counsel “on direct appeal if and only if it
conclusively appears from the record that his counsel did not
provide effective assistance.” United States v. Martinez, 136
F.3d 972, 979 (4th Cir. 1998). To prove ineffective assistance,
the defendant must show two things: (1) “that counsel’s
representation fell below an objective standard of
reasonableness” and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984).
We find that Curtis has conclusively shown he received
ineffective assistance of counsel. In the PSR, the probation
officer incorrectly stated that the applicable Guidelines range
for an adjusted offense level of 23 and criminal history
2

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category II was fifty-seven to seventy-one months, when the
correct Guidelines range is fifty-one to sixty-three months.
U.S. Sentencing Guidelines Manual, ch. 5, pt. A (sentencing
table) (2007). At sentencing, the district court accepted the
Guidelines range as calculated in the PSR and sentenced Curtis
to fifty-seven months’ imprisonment. Counsel’s failure to
object to the erroneous Guidelines range was objectively
unreasonable, given the ease with which counsel should have
spotted the error. Further, there is a reasonable possibility
that, had counsel objected to the erroneous Guidelines range,
the district court would have sentenced Curtis at the low end of
the proper Guidelines range, which was six months less than his
current sentence.
For the foregoing reasons, we affirm Curtis’s
conviction, but vacate his sentence and remand for resentencing.
We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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