* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-50721

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IAN JAMES HOLBS,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. A-96-CV-133

- - - - - - - - - -

August 17, 1998

Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Ian James Holbs, federal prisoner # 52761-080, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate,

set aside, or correct his sentence. Because Holbs filed his

§ 2255 motion before the April 24, 1996, effective date of the

Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-

132, 110 Stat. 1214 (1996), he need not obtain a certificate of

appealability to proceed on appeal. See Lindh v. Murphy, 117 S.

Ct. 2059, 2063 (1997).
Holbs contends that the district court failed to advise him 

of the mandatory minimum sentence, the statutory maximum

sentence, the correct term of supervised release or the effect of

supervised release, and the maximum possible fine as required by

Fed. R. Crim. P. 11. Holbs also contends that his counsel was

ineffective in that he failed to raise the district court’s

failure to comply with Rule 11 in the district court or on direct

appeal. 

Because Holbs pleaded guilty to conspiracy to manufacture

over 100 grams of methamphetamine, he was subject to a mandatory

minimum sentence of ten years, a statutory maximum sentence of

life imprisonment, five years of supervised release, and a

maximum possible fine of $4,000,000. 21 U.S.C. §§ 841(b)(1)(A),

846. The district court did not inform Holbs of the ten-year

mandatory minimum sentence. Holbs’ counsel did not raise the

issue in the district court or on direct appeal. The Government

raised the procedural bar in its response to Holbs’ § 2255

motion. See United States v. Drobny, 955 F.2d 990, 995 (5th Cir.

1992). Holbs established that his counsel’s ineffectiveness was

cause for his failure to raise the issue on direct appeal. See

United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992). 

 Although we do not know whether Holbs was familiar with his

likely guideline sentence, without any adjustment for criminal

history or any other factor, the guidelines provided for a

minimum sentence of sixty-three months. Holbs' actual guideline

range as computed by the PSR and adopted by the district court

was 110 to 137 months. The district court imposed a sentence of 
No. 97-50721 

-3-

 

2 Because we remand with instructions to vacate Holbs’

conviction, we need not reach Holbs’ remaining claims.

137 months. Thus, even if we assume Holbs anticipated his true

guideline range, he could have reasonably expected a sentence

below the ten-year minimum. Holbs has therefore adequately

demonstrated that there is a reasonable probability that he would

not have entered his guilty plea had he known of the ten-year

minimum sentence. Therefore, the district court’s judgment is

REVERSED and the case is REMANDED with instructions to vacate

Holbs’ conviction, to allow Holbs to withdraw his guilty plea,

and to allow Holbs to enter a new plea.2