* 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this opinion should not be published and is not precedent except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. 97-10061

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIE MAE CALMES,

Defendant-Appellant.

 

Appeal from the United States District Court

For the Northern District of Texas

(4:96-CV-715)

 

April 16, 1998

Before WISDOM, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

On appeal, Willie Mae Calmes, who pleaded guilty to possession

with intent to distribute cocaine, raises two claims of ineffective

assistance of counsel. We reject her claims of error and AFFIRM

the conviction and sentence imposed.

I.
1 The district court also granted Calmes’s motion to proceed

in forma pauperis (IFP) on appeal.

2

In 1992, Willie Mae Calmes, now a federal prisoner, pleaded

guilty to a one-count indictment charging her with possession with

intent to distribute cocaine. The district court sentenced Calmes

to 78 months of imprisonment and four years of supervised release.

Calmes did not file an appeal.

In October 1996, Calmes filed a motion pursuant to 28 U.S.C.

§ 2255, seeking to vacate her sentence. She contended that she

received ineffective assistance of counsel because counsel did not

file an appeal after she asked him to do so and failed to raise on

appeal his objections to the use of a prior conviction to enhance

her criminal history category.

The district court denied Calmes’s motion without conducting

an evidentiary hearing. The court ruled that Calmes’s criminal

history category had not been in error, and therefore, counsel’s

failure to object to the criminal history category at sentencing or

in an appeal did not evidence deficient performance.

Calmes timely filed her notice of appeal from the district

court’s judgment denying her §2255 motion.1

This court granted Calmes’s request for a certificate of

appealability (COA) on May 14, 1997. United State v. Calmes, No.

97-10061 (5th Cir. May 14, 1997). In the same order, this court

remanded the case to the district court for the limited purpose of

determining whether the actions of Calmes’s trial attorney amounted
3

to denial of an appeal, thereby justifying a presumption of

prejudice in her ineffective-assistance claim.

On remand, the district court conducted an evidentiary hearing

via telephone. Appearing at the conference were Calmes, Calmes’s

trial attorney, D. Lanty McCartney III, and government attorney,

Chris Curtis. After the hearing, the district court entered a

written order determining that Calmes did not ask her attorney to

appeal her conviction until two or three months after she was

sentenced. Consequently, counsel’s actions did not amount to a

denial of an appeal and hence her ineffective-assistance claim was

without merit. Calmes timely filed her notice of appeal from this

order. 

II.

We first address whether Calmes’s trial attorney failed to

file a notice of appeal following her conviction and sentence

despite her request that he do so.

This court reviews the district court’s factual findings in a

§2255 proceeding for clear error. United States v. Cates, 952 F.2d

149, 153 (5th Cir. 1992).

Calmes contends that she received ineffective assistance of

counsel because she asked counsel to file an appeal following

imposition of her sentence and he did not do so. She asserts that
4

counsel’s failure to file her appeal amounts to a per se violation

of the Sixth Amendment.

At the telephone conference conducted by the district court,

Calmes stated that she did not know anything about an appeal until

approximately two or three months after she was sentenced. She

said that, two or three months after she was sentenced, she was

looking through her PSR, and she wondered why her criminal history

category had been increased based on two prior misdemeanor

convictions. Calmes said that it was at this time that someone

told her that she should appeal this issue. Until then, she

thought “everything was right” concerning her conviction and

sentence.

Counsel McCartney told the court that Calmes did not ask him

to file an appeal at sentencing. He stated that he remembered that

the court instructed Calmes on her right to appeal at sentencing,

and he stated that he was confident that she understood this right

of appeal. McCartney also remembered discussing the form

explaining her rights with Calmes and both of them signed the form

at sentencing.

Based on the statements made by Calmes and McCartney at the

telephone hearing, Calmes has failed to show that the district

court clearly erred in finding that she did not request an appeal

until two or three months after sentencing. Accordingly, her claim

of a per se Sixth Amendment violation must fail.
5

Next, we address whether Calmes received ineffective

assistance of counsel because counsel failed to fully investigate

her prior convictions and failed to raise on appeal his objections

to the use of a prior conviction to enhance her criminal history

category.

To prevail on an ineffective assistance of counsel claim, an

appellant must show “that counsel’s performance was deficient” and

“that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove

deficient performance, the appellant must show that counsel’s

actions “fell below an objective standard of reasonableness.” Id.

at 688. To prove prejudice, the appellant must show that “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different,”

id. at 694, and that “counsel’s deficient performance render[ed]

the result of the trial unreliable or the proceeding fundamentally

unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A

reasonable probability is a probability sufficient to undermine

confidence in the outcome of the proceeding. Strickland, 466 U.S.

at 694.

"With respect to prejudice in the context of non-capital

sentencing, the . . . court must determine whether there is a

probability that, but for counsel's deficiency, the defendant's

sentence would have been significantly less harsh." United States

v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995).
6

The issue here is whether an imposed 180-day sentence for

disorderly conduct, the execution of which was suspended, can be

counted as one criminal history point under U.S.S.G. §4A1.1(c).

Section 4A1.2(a)(3) provides: “A conviction for which the

imposition or execution of a sentence was totally suspended or

stayed shall be counted as a prior sentence under §4A1.1(c).”

Section 4A1.2(c)(1), however, provides that sentences for certain

listed misdemeanors, including disorderly conduct, are counted only

if (A) the sentence was a term of probation of at least one year or

a term of imprisonment of at least thirty days, or (B) the prior

offense was similar to an instant offense. In defining the term

“sentence of imprisonment,” the guidelines provide that, “[i]f a

part of a sentence of imprisonment was suspended, `sentence of

imprisonment’ refers only to that portion that was not suspended.”

U.S.S.G. §4A1.2(b)(2).

The district court agreed that §4A1.2(b)(2) provides that the

term “sentence of imprisonment” refers only to the portion that was

not suspended. However, as the district court noted,

§4A1.2(c)(1)(A), the provision that states that otherwise

excludable misdemeanor offenses are counted if the sentence was a

“term of imprisonment,” does not use the term “sentence of

imprisonment.” Accordingly, Calmes’s argument that her disorderly

conduct conviction was improperly counted is without merit and her
7

trial counsel was not ineffective in failing to contest her

criminal history score.

Assuming, arguendo, that counsel’s performance was deficient,

Calmes must show that her sentence would have been “significantly

less harsh” without the inclusion of the disorderly conduct offense

in her criminal history. Acklen, 47 F.3d at 742.

In Spriggs v. Collins, 993 F.2d 85, 88-89 (5th Cir. 1993),

this court stated that in determining whether there is a reasonable

probability that but for trial counsel’s errors the defendant’s

non-capital sentence would have been significantly less harsh, a

court should consider a number of factors, including: the actual

amount of the sentence imposed on the defendant by the sentencing

judge or jury; the minimum and maximum sentences possible under the

relevant statute or sentencing guidelines; the relative placement

of the sentence actually imposed within that range; and the various

relevant mitigating and aggravating factors that were properly

considered by the sentencer.

Calmes’s total offense level was 27. Including the

disorderly-conduct offense results in a criminal history category

of II. The applicable guidelines range for this combination is 78-

97 months. U.S.S.G., Ch.5, Pt.A, sentencing table. The district

court sentenced Calmes at the bottom of this range to 78 months

imprisonment.
8

Removing the disorderly conduct offense from Calmes’s criminal

history results in a criminal history category of I. Criminal

history category I, combined with Calmes’s total offense level of

27, yields an applicable sentencing range of 70-87 months

imprisonment. U.S.S.G., Ch.5, Pt.A, sentencing table. 

Although Calmes’s 78-month sentence falls within the middle of

the guidelines range that would have resulted from a criminal

history category I, it is only speculation that the district court

would have imposed the same 78-month sentence. Given that the

district court sentenced Calmes to the bottom of the applicable

guidelines range for a criminal history of category II, one might

assume, as Calmes contends, that the district court would have

sentenced Calmes to the bottom of the applicable guidelines range

for a criminal history of category I, 70 months of imprisonment.

This is an eight-month, or 10.25%, reduction in sentence.

This court and other circuits have remanded for resentencing

only in cases where the reduction in sentence in absolute and

percentage terms is much greater. Compare Randle v. Scott, 43 F.3d

221, 225 (5th Cir. 1995) (holding that a change in sentencing range

from 25-99 years or life to 5-99 years or life is not significantly

less harsh); Martin v. U.S., 109 F.3d 1177, 1178 (7th Cir. 1996)

(holding that a single criminal-history level increase is not

significant increase in sentence); and Durrive v. U.S., 4 F.3d 548,

551 (7th Cir. 1993) (noting that a reduction in sentence from 120

months to 108 months or even 98 months is not a significant
9

difference) with U.S. v. Acklen, 47 F.3d 739, 744 n.9 (5th Cir.

1995) (holding that a change in sentencing range from 262-327

months to 108-135 months is significantly less harsh) and U.S. v.

Kissick, 69 F.3d 1048, 1056 (10th Cir. 1995) (remanding for

resentencing when the sentencing range is changed from 324-405

months to 262-327 months).

In sum, we reject Calmes’s two claims of ineffective

assistance of counsel and AFFIRM the conviction and sentence

imposed.