UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit. 
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