# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 40413 Summary Calendar

**United States of America,**
Plaintiff

— Appellee **,**

versus
**Clovis Shantez Liggins,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:15

- CV

- 763

Before **Barksdale, Graves,** and **Oldham,** Circuit Judges

**. Per Curiam**  **:** *

Clovis Shantez Liggins, federal prisoner # 16490

- 078, was convicted of conspiracy to manufacture, distribute, or possess , with intent to distribute , five kilograms or more of cocaine, 50 grams or more of cocaine base (crack

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 14, 2021 Lyle W. C ayce Clerk Case: 19-40413 Document: 00515822221 Page: 1 Date Filed: 04/14/2021No. 19

- 40413

2 cocaine) , and 1000 kilograms or more of mari j u ana , in violation of 21 U.S.C. § § 841(a), 846. He was sentenced to , inter alia , life imprisonment. During Liggins’ criminal proceedings, the 2010 Fair Sentencing Act (FSA) was enacted

. The FSA, inter alia , increas ed the quantity of crack cocaine necessary to impose the enhanced sentencing provisions of 21 U.S.C. § 841(b)(1)(A) (iii) from 50 grams or more to 280 grams or more

. No twithstanding the FSA’s enactment , Liggins’ amended indictment alleged a conspiracy involving, inter alia , 50 grams or mo re of crack cocaine

. Importantly, the jury ’s special verdict also attributed to him 50 grams or more of crack cocaine

. The presentence investigation report (PSR) determined Liggins was responsible for 1285.6 grams of crack cocaine and , according to the 2010 version of the statute , he was subject to a mandatory life sentence because of his two prior felony drug convictions. See 21 U.S.C. § 841(b)(1)(A) (201 0 )

. At sentencing, the district court noted that , under the FSA ’s amendments , 50 grams of crack cocaine would not mandate a life sentence

. See id. T he

court , however, reasoned it was not bound by the jury’s drug

- quantity determination because the jury found Li ggins responsible for 50 grams or

more of crack cocaine . The court then relied on the PSR, along with evidence presented at trial , to find Liggins responsible for 280 grams or more of crack cocaine

. Consequently, t he court imposed a mandatory life sentence under 28 U.S.C. § 841(b)(1)(A). Pursuant to a certificate of appealability granted by our court, Liggins , proceeding pro se , contests the district court’s denial of his 28 U.S.C. § 2255 motion . He contends: the c ourt engaged in improper factfinding that increased his minimum statutory sentencing range in violation of Alleyne v. United States , 570 U.S. 99 (2013) , and Apprendi v. New Jersey , 530 U.S. 466 (2000) ; and his appellate counsel rendered ineffective assista nce of counsel Case: 19-40413 Document: 00515822221 Page: 2 Date Filed: 04/14/2021No. 19

- 40413

3 (IAC) by failing to challenge the court’s factfinding at sentencing. Liggins asserts he should have been sentenced pursuant to 28 U.S.C. § 841(b)(1)(B), under which he would have faced a statutory sentencing range of 120 months to life

. Se e 28 U.S.C. § 841(b)(1)(B) (2010) (stating an offense involving 28 grams or more of crack cocaine results in a statutory range of 120

- months’ imprisonment to life for a defendant with a prior felony drug conviction ). Regarding § 2255 motions, we review the district court’s factual findings for clear error; its legal conclusions , de novo

. United States v. Cavitt , 550 F.3d 430, 435 (5th Cir. 2008). To succeed on an I A C claim, defendant must show counsel’s performance was object ively deficient and, as a result, defendant was prejudiced. Strickland v. Washington , 466 U.S. 668, 687 (1984)

. The Government concedes the court engaged in improper factfinding that increased Liggins’ mandatory minimum sentence. Under Alleyne , “facts th at increase mandatory minimum sentences must be submitted to the jury”

. In that regard, our court has explained a court may not disregard a jury’s drug

- quantity finding as it pertain s to a mandatory minimum sentenc e

. See United States v. Akins , 746 F.3d 590, 612 (5th Cir. 2014) (“ We agree with [defendant] that the sentencing judge was in error insofar as he looked to a crack cocaine calculation that was in excess of the jury ’ s finding and that would trigger a higher sentence than the quantity found b y the jury ”

. ). In addition , t he Government acknowledge s: in the light of Akins , appellate counsel rendered deficient performance by failing on appeal to challenge the judicial factfinding ; and Liggins suffered prejudice because of the error.

**VACAT ED**  ; **REM AND**  **ED** for resentencing. Case: 19-40413 Document: 00515822221 Page: 3 Date Filed: 04/14/2021