* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ROY GLOVER,

Defendant-Appellant. No. 97-5130 (D.C. No. 97-CV-22-C) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA andMcKAY , Circuit Judges, and BROWN, ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Roy Glover, proceeding pro se, appeals from the dis trict court’s denial of his motion to vacate, set aside or correct his sent ence, filed pursuant to 28 U.S.C. § 2255. In an order dated July 6, 1998, this courtgranted Glover a certificate of appealability on a single issue raised on appeal: his challenge of the district court’s denial of an evidentiary hearing on the que stion whether the sentencing court erred in using D-methamphetamine rather than L-methamphetamine to establish his base offense level. We denied Glovera certificate of appealability on all other issues raised on appeal. We also dire cted the government to file a response brief on the remaining issue, specifically questioning why the case should not be remanded to the district court for an evidentiary hearing in light of United States v. Youngpeter , No. 97-5142, 1998 WL 171838 (10th Cir. Apr. 13, 1998). The government, in response, conceded that an evidentiary hearing should be held “to better serve the interests of justice.” Response at 3. “In response to a § 2255 motion, the district court‘must hold an evidentiary hearing on the prisoner’s claims “[u]nless the moti on and files and records of the case conclusively show that the prisoner is entitle d to no relief.”’” United States v. Lopez , 100 F.3d 113, 119 (10th Cir. 1996) (quoting Unite d States v. Galloway , 56 F.3d 1239, 1240 n.1 (10th Cir. 1995) (quoting 28 U.S.C. § 2255)). We review-3-

the district court’s decision not to hold an eviden tiary hearing for abuse of discretion. See id. After reviewing the record on appeal, together wi th Glover’s arguments and the applicable legal standards, we co nclude that this appeal is controlled by our decision in Youngpeter , and therefore agree with the government that an evidentiary hearing is required. The district court abused its discretion in denying Glover an evidentiary hearing by relying on the factual findings reached in an evidentiary hearing held forone of Glover’s co-defendants, thereby violating his rights to be present and to b e represented by counsel during the hearing. See Youngpeter , 1998 WL 171838, at **5. The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED, and this case is remanded to the district court for an evidentiary hearing on the single issue whether Glo ver was properly sentenced on the basis of D-methamphetamine. The mandate shall issue forthwith.

Entered for the Court

Wesley E. Brown Senior District Judge