FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50030 Plaintiff-Appellee,

D.C. No.

v.  CR-00-1132-MMM

CLIFFORD A. DAVIS, M.D., OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

March 7, 2005—Pasadena, California

Filed June 9, 2005

Before: Susan P. Graber and Consuelo M. Callahan,

Circuit Judges, and Charles R. Breyer,* District Judge.

Opinion by District Judge Breyer;

Partial Dissent By Judge Callahan

*Honorable Charles R. Breyer, United States District Judge for the

Northern District of California, sitting by designation. 

6753
COUNSEL

Randy S. Kravis, Studio City, California, for the defendantappellant. 

Ronald L. Cheng, Assistant United States Attorney, Los

Angeles, California, for the plaintiff-appellee. 

OPINION

BREYER, District Judge: 

We must decide whether a district court has discretion to

permit a defendant to withdraw his guilty plea prior to sentencing when the district court finds that defense counsel

“grossly mischaracterized” the defendant’s possible sentence,

but also finds that the mischaracterization did not actually

prejudice the defendant as is required to invalidate a plea

post-sentence. We answer “yes.” Because the district court

did not believe it had such discretion, we vacate and remand

for reconsideration of defendant’s motion to withdraw his

plea. 

FACTUAL AND PROCEDURAL BACKGROUND

A grand jury indicted defendant, a physician, for conspiracy to distribute Dilaudid, a Schedule II controlled substance,

and for twelve separate distribution counts. After several con6756 UNITED STATES v. DAVIS
tinuances, trial was scheduled for October 23, 2001. Just

before trial, defendant, then aged 72, pled guilty pursuant to

a plea agreement to a second superseding information charging defendant with two counts of violating 21 U.S.C.

§ 843(b), using a telephone to facilitate a conspiracy to distribute illegal narcotics by means of false and fraudulent drug

prescriptions. The plea agreement unambiguously stated that

defendant’s potential maximum sentence was eight years.

During the extensive Rule 11 plea colloquy, the government,

at the district court’s request, again stated that the defendant

faced a maximum sentence of eight years, and further emphasized that the government might seek an offense level which

would place defendant’s guideline range well in excess of the

eight-year statutory maximum. 

In February 2002, the United States Probation Office issued

a Presentence Report (“PSR”) in which it recommended that

the court sentence defendant to the statutory maximum of

eight years’ imprisonment. Although defendant had stipulated

to illegally issuing only 16 prescriptions for Dilaudid, the

PSR calculated defendant’s offense level based on defendant

having illegally issued additional prescriptions. Defendant

subsequently filed a motion for new counsel (defendant’s

retained counsel had become appointed counsel around the

time of defendant’s plea). 

The district court held a hearing on defendant’s request.

During the in camera portion of the hearing, defendant

explained that he wanted new counsel because, among other

reasons, he wanted to withdraw his plea, but his attorney was

not supportive of the idea. Defendant’s counsel stated on the

record that defendant’s decision to plead guilty was very difficult, and that defendant was uncertain as to what to do up to

the very last minute. After additional inquiry, the district court

determined that defendant could continue to communicate

with his counsel and therefore denied the request for substitute counsel. 

UNITED STATES v. DAVIS 6757
Defendant nonetheless came up with the funds to hire new

counsel, and before he was sentenced, filed a motion to withdraw his guilty plea. Defendant argued that his former counsel

had pressured him into entering the plea, and that his counsel

had rendered ineffective assistance of counsel by advising

defendant that he would receive probation if he pled guilty. 

The district court held an evidentiary hearing on defendant’s motion. Defendant and defendant’s son testified in support of the motion to withdraw. Defendant’s son testified that

the weekend before defendant pled guilty, defendant told him

that he might have to plead guilty in order to avoid jail time.

The government called defendant’s former attorney as a witness. The former attorney denied having promised that defendant would receive probation if he pled guilty, but he

admitted that he advised defendant that his potential sentencing range was probation to eight years. 

The district court subsequently issued a 27-page written

order denying defendant’s motion to withdraw his plea. After

acknowledging that the court could permit defendant to withdraw his plea if he shows a “fair and just reason” for doing

so, the district court applied the two-part test for invalidating

a guilty plea based on ineffective assistance of counsel. See

Hill v. Lockhart, 474 U.S. 52, 59 (1985). The court rejected

defendant’s assertion that his former attorney had absolutely

promised that he would receive probation, but nonetheless

found that counsel had rendered constitutionally deficient performance when advising defendant on the entry of the guilty

plea: 

Because there was little, if any, likelihood that

defendant might receive a probationary sentence in

this case, and because mention of such a possibility

significantly skewed the sentencing range [counsel]

presented, . . . [counsel] grossly mischaracterized the

likely outcome of the case and rendered deficient

6758 UNITED STATES v. DAVIS
performance in advising defendant regarding the

entry of a guilty plea. 

The court next concluded, however, that defendant had not

demonstrated actual prejudice; that is, he had not proved that

but for his counsel’s deficient performance he would not have

pled guilty. The court based this conclusion on the Rule 11

plea colloquy and, in particular, on the fact that defendant was

told, and stated that he understood, that he could be sentenced

to eight years in prison. For this reason the district court

denied defendant’s motion to withdraw his plea. 

At the subsequent sentencing hearing, the court adopted the

PSR’s findings. The court also found that defendant was

likely to die within the next five years because of a heart condition, but declined to depart downward; instead, the court

sentenced defendant to the statutory maximum of eight years.

Defendant appeals the district court’s denial of his motion

to withdraw his plea. He also argues that in the light of the

United States Supreme Court’s decision in United States v.

Booker, 543 U.S. __, 125 S.Ct. 738 (2005), his case should be

remanded to the district court for resentencing. 

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a district court’s denial of

a Rule 11 motion to withdraw a guilty plea pursuant to 28

U.S.C. § 1291. United States v. Nostratis, 321 F.3d 1206,

1207 (9th Cir. 2003). We review the district court’s denial of

such a motion for an abuse of discretion. United States v.

Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004). “A district court abuses its discretion when it rests its decision on an

inaccurate view of the law.” United States v. Garcia, 401 F.3d

1008, 1011 (9th Cir. 2005). 

UNITED STATES v. DAVIS 6759
DISCUSSION

A. The Motion To Withdraw The Plea

[1] A district court may permit a defendant to withdraw a

guilty plea before sentencing if “the defendant can show a fair

and just reason for requesting the withdrawal.” Fed.R.Crim.P.

11(d)(2)(B).1 After a defendant is sentenced, however, a “plea

may be set aside only on direct appeal or collateral attack.”

Fed. R.Crim.P. 11(e). 

[2] The defendant has the burden of demonstrating a fair

and just reason for withdrawal of a plea, see Rule 11(d)(2)(B);

however, the standard is applied liberally. See Garcia, 401

F.3d at 1011; Ortega-Ascanio, 376 F.3d at 883; United States

v. Nagra, 147 F.3d 875, 880 (9th Cir. 1998); see also United

States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988) (stating

that a motion to withdraw a plea pre-sentence should be

“freely allowed”). “Fair and just reasons for withdrawal

include inadequate Rule 11 plea colloquies, newly discovered

evidence, intervening circumstances, or any other reason for

withdrawing the plea that did not exist when the defendant

entered his plea.” Ortega-Ascanio, 376 F.3d at 883 (emphasis

added). 

Here, defendant proffered a reason for withdrawal that he

claimed did not exist at the time of his plea; namely, his belief

(based on his attorney’s advice) that if he pled guilty he

would receive probation. Arguably, he learned that there was

virtually no chance that he would receive probation when he

received the PSR. The district court found that counsel had

1This Rule was found in Federal Rules of Criminal Procedure 32(e) at

the time the district court decided defendant’s motion to withdraw his

plea. After the December 2002 amendments to the Rules, the withdrawal

Rule was moved to Rule 11(d)(2)(B). “Despite minor language changes in

the rule, the ‘fair and just reason’ standard remains the same . . . .” Nostratis, 321 F.3d at 1208 n.1. This Opinion refers to the Rule in its current

form. 

6760 UNITED STATES v. DAVIS
not promised that defendant would receive probation, but it

also found that counsel had “grossly mischaracterized” defendant’s possible sentence and had rendered deficient performance by advising defendant that his likely sentence was

probation to eight years. See Chacon v. Wood, 36 F.3d 1459,

1464 (9th Cir. 1994) (noting that a defendant can prove that

his counsel engaged in constitutionally deficient performance

by showing that counsel grossly mischaracterized the likely

outcome) (citing Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir.

1986))), superceded by statute on other grounds as stated in

Morris v. Woodford, 229 F.3d 775, 779 (9th Cir. 2000). Under

the Sentencing Guidelines there was little, if any, possibility

that defendant would be sentenced to probation or anything

close to probation.2 Again, defendant arguably did not learn

of his attorney’s gross mischaracterization until he received

the PSR. 

The district court nonetheless denied defendant’s motion

because defendant did not prove actual prejudice as required

by Hill, 474 U.S. at 58-59. In Hill, the United States Supreme

Court held that a defendant may successfully attack the validity of a guilty plea based on ineffective assistance of counsel

if the defendant shows “that there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Id. at 59.

The court concluded that defendant had not met this burden

because, during the Rule 11 colloquy, the court properly

advised defendant that he could be sentenced to a maximum

of eight years’ imprisonment, precisely the sentence he

received. Defendant’s acknowledgment of this fact during the

colloquy was, the district court concluded, inconsistent with

his assertion that he believed he would receive probation. 

2The district court found that, in order for defendant to receive a sentence at the low end of the range suggested by counsel, the court would

have had to depart 20 to 30 levels. The court further found that there was

little likelihood that the limited grounds for departure reserved by defendant in the plea agreement would warrant such an extreme departure. 

UNITED STATES v. DAVIS 6761
[3] Although the district court may have correctly determined that defendant had not established actual prejudice sufficient to invalidate his plea, a defendant does not have to

prove that his plea is invalid in order to establish a fair and

just reason for withdrawal. The invalidity standard applies

only after a defendant has been sentenced. See Fed.R.Crim.P.

11(e); Garcia, 401 F.3d at 1012; Ortega-Ascanio, 376 F.3d at

884. Prior to sentencing, the proper inquiry is whether the

defendant has shown a fair and just reason for withdrawing

his plea even if the plea is otherwise valid. See Garcia, 401

F.3d at 1012; Ortega-Ascanio, 376 F.3d at 884.3

In Ortega-Ascanio, for example, the defendant moved to

withdraw his plea prior to sentencing so that he could move

to dismiss the indictment based on a Supreme Court decision

issued after his plea. The district court ruled that the defendant had not shown a fair and just reason for withdrawing his

3Two of our previous decisions suggest that the post-sentence standard

for invalidating a plea applies to a defendant’s pre-sentence motion to

withdraw a plea based on counsel’s erroneous advice. United States v.

Signori, 844 F.2d 635, 638 (9th Cir. 1988); United States v. Rubalcaba,

811 F.2d 491, 494 (9th Cir. 1987). Neither of those cases, however, analyzes whether requiring a defendant on a pre-sentence motion to withdraw

a plea to prove that his plea is invalid violates the distinction Rule 11

makes between pre-sentence motions to withdraw and post-sentence challenges to pleas. 

Moreover, neither case involves a finding by the district court that

defense counsel’s advice was constitutionally defective. Signori, 844 F.2d

at 639 (stating that “the district court could find as a fact that Signori had

not proven misrepresentation or misunderstanding”); Rubalcaba, 811 F.2d

at 494 (finding that the defendant was advised, at least implicitly, that his

sentence could run consecutively). Here, in contrast, defense counsel affirmatively misrepresented to defendant that the likely sentencing range was

probation to eight years and the Rule 11 colloquy did not correct that misrepresentation. While defendant was unequivocally advised that he could

be sentenced to a maximum of eight years’ imprisonment, he was not

advised of the likely sentencing range, and more importantly, that he had

absolutely no chance of receiving probation or anything close to probation. 

6762 UNITED STATES v. DAVIS
plea because “ ‘a pre-plea constitutional violation . . . by itself

is insufficient to invalidate the properly entered guilty plea.’ ”

Id. at 883. We reversed, holding that the district court had

applied the wrong legal standard to the defendant’s motion:

“namely, demonstration that the plea was invalid.” Id. at 884.

[4] The district court applied the same incorrect legal standard here: requiring defendant to prove that his plea is invalid.

The court held that defense counsel’s constitutionally deficient performance could constitute a fair and just reason for

withdrawing the plea only if defendant satisfied the prejudice

prong of Hill; that is, only if he proved that absent his counsel’s erroneous advice he would have insisted on going to

trial. See Hill, 474 U.S. at 59. The Hill standard, however,

applies when a defendant seeks to invalidate a plea postsentence. To require a defendant to satisfy the prejudice prong

of Hill in order to withdraw a plea based on counsel’s erroneous advice eviscerates the distinction between a motion to

withdraw a plea made pre-sentence and a post-sentence challenge to a plea. 

Such an interpretation of ‘fair and just’ renders the

rule nothing more than an expedited hearing on a

challenge to the voluntariness of a plea. A fair reading of the broad language of Rule 11(d)(2)(B) . . .

establishes that a defendant need not prove that his

plea is invalid in order to meet his burden of establishing a fair and just reason for withdrawal. 

Ortega-Ascanio, 376 F.3d at 884; see also Garcia, 401 F.3d

at 1012 (holding that the “ ‘fair and just reason’ standard is

simply more generous than the standard for determining

whether a plea is invalid”). 

[5] Thus, a defense counsel’s erroneous advice may constitute a fair and just reason for withdrawing a plea even if the

defendant does not prove that he would not have pled guilty

but for the erroneous advice. Our recent decision in Garcia is

UNITED STATES v. DAVIS 6763
illustrative. There the defendant moved to withdraw his plea

based on newly-discovered evidence. We held that, 

[w]hile newly discovered evidence wholly unrelated

to a defendant’s case would surely not entitle him to

withdraw his guilty plea, the generous “fair and just

reason” standard does not require that the defendant

show that the new evidence exonerates him or that

there is a reasonable probability he would not have

been convicted had the case gone to trial. 

401 F.3d at 1011. We also did not require Garcia to prove that

he would not have pled guilty had he been aware of the newly

discovered evidence: 

Had Garcia known about this evidence earlier, he

may well have changed his mind about whether to

plead guilty. We need not hypothesize about the ripple effect of the new evidence or speculate about its

potential effect on a jury. It is sufficient that this evidence was relevant evidence in Garcia’s favor that

could have a least plausibly motivated a reasonable

person in Garcia’s position not to have pled guilty

had he known about the evidence prior to pleading.

Id. at 1011-12 (emphasis added). Thus, a defendant may demonstrate a fair and just reason for plea withdrawal by showing

that his counsel’s gross mischaracterization plausibly could

have motivated his decision to plead guilty. Nothing in Rule

11(d)(2)(B) requires a defendant to show more in order to satisfy the “fair and just reason” standard. 

[6] We have little difficulty concluding that, under this

standard, the district court in its discretion could have permitted defendant to withdraw his plea. Defense counsel’s testimony that defendant was uncertain as to whether to plead

guilty until the very last moment, defendant’s son’s testimony

that defendant stated that he was pleading guilty to avoid jail,

6764 UNITED STATES v. DAVIS
and defendant’s advanced age and poor health, all support a

finding that defense counsel’s gross mischaracterization of the

likely sentencing range could have motivated defendant to

plead guilty. The district court, however, incorrectly believed

that it did not have discretion to permit defendant to withdraw

his plea unless defendant proved actual prejudice. The district

court’s unduly narrow view of its discretion requires us to

vacate the denial of defendant’s motion to withdraw his plea.

See United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir. 2001)

(en banc) (holding that a district court’s application of the

wrong legal standard on a motion to withdraw a plea constitutes an abuse of discretion). 

[7] In Ortega-Ascanio and Garcia, we determined that

under the correct legal standard it would have been an abuse

of discretion not to grant the defendant’s motion to withdraw.

We do not make that determination here; instead, we remand

to the district court to decide anew defendant’s motion to

withdraw his plea based on the correct legal standard. See

Ruiz, 257 F.3d at 1033. 

B. The Booker Claim

[8] While defendant’s appeal was pending, the United

States Supreme Court decided Booker. The Court held that the

Sentencing Guidelines are advisory and that the appellate

courts should review sentences for “unreasonableness.” 125

S. Ct. at 764-65. “Because we cannot say that the district

judge would have imposed the same sentence in the absence

of mandatory Guidelines and de novo review of downward

departures,” United States v. Ruiz-Alonso, 397 F.3d 815, 820

(9th Cir. 2005), and in the event the district court does not

permit defendant to withdraw his plea, the district court shall

resentence defendant in accordance with Booker. 

VACATED AND REMANDED. 

UNITED STATES v. DAVIS 6765
CALLAHAN, Circuit Judge, dissenting in part: 

I respectfully dissent from Part A of the majority’s opinion.

The majority improperly faults the district court for applying

established law from this circuit, and creates an unworkable

standard for determining whether an attorney’s deficient

advice constitutes a fair and just reason for the withdrawal of

a guilty plea. 

In my view, we are bound by the standard set forth in Hill

v. Lockhart, 474 U.S. 52, 57-59 (1985), as previously applied

to presentence cases in United States v. Signori, 844 F.2d 635,

638 (9th Cir. 1988) and United States v. Rubalcaba, 811 F.2d

491, 494 (9th Cir. 1987). Thus, even if this panel were to set

forth a new standard, the district court could hardly be criticized for following established case law.1

In Rubalcaba, the defendant filed a motion to withdraw his

guilty plea to conspiracy to possess and distribute heroin and

possession of a firearm. One of the defendant’s grounds for

withdrawing the plea was that he misunderstood the plea

agreement because he was denied effective assistance of

counsel. The court applied the standard from Hill and held

that “[e]ven if Rubalcaba’s attorney acted incompetently by

misinforming him of the nature of the plea bargain, Rubalcaba

has failed to show this act prejudiced him.” Id. This statement

is equally applicable to our situation.

The majority, however, contends that Rubalcaba’s application of the Hill standard is not binding because the opinion

does not analyze whether applying Hill in the presentence

context “violates the distinction Rule 11 makes between presentence motions to withdraw and post-sentence challenges to

pleas.”

2

 This statement is nothing more than a synopsis of the

1The Hill standard has also been applied in the presentencing context in

cases arising in other circuits. See, e.g., United States v. Pellerito, 878 F2d

1535 (1st Cir. 1989). 

2The majority also attempts to distinguish Rubalcaba and Signori on the

grounds that neither case involved a finding by the district court that counsel had rendered defective advice. 

6766 UNITED STATES v. DAVIS
majority’s rationale for disagreeing with the application of the

Hill standard in Rubalcaba. 

The fact that a prior panel may not have considered a particular argument, or line of thought, in reaching its bottom

line does not provide a valid basis for distinguishing otherwise controlling precedent. Indeed, such a posture would

invite subsequent panels to distinguish precedent based solely

on the fact that prior panels had not specifically considered a

novel argument. Our jurisprudence is not, however, a perpetual tabula rasa. See United States v. Johnson, 256 F.3d 895,

916 (9th Cir. 2001) (“If later panels could dismiss the work

product of earlier panels quite so easily, much of our circuit

law would be put in doubt.”)(en banc)(plurality op. of Kozinski, J.); see also Barapind v. Enomoto, 400 F.3d 744, (9th Cir.

2005) (en banc) (noting that if the majority of a panel chooses

to an address an issue, the court’s disposition of that issue

becomes law of the circuit). 

In addition, the majority’s holding establishes an unworkable standard. We agree that Davis must show a “fair and just

reason” for withdrawal of his guilty plea, but part company as

to what showing a defendant has to make to meet this standard. The district court found that Davis had not met his burden of offering a fair and just reason because — to use the

majority’s phrase — he had not shown “that but for his counsel’s deficient performance he would not have pled guilty.”

Nothing in the majority’s opinion supports our disturbing the

district court’s determination. 

The majority, however, holds that “a defense counsel’s

erroneous advice may constitute a fair and just reason for

withdrawing a plea even if the defendant does not prove that

he would not have pled guilty but for the erroneous advice.”

This is troubling for several reasons. First, even if this were

an accurate statement of the law as permissive (“may”), it

does not follow that such erroneous advice commands the

vacation of the sentence. Following the majority’s approach,

UNITED STATES v. DAVIS 6767
a competent criminal defense counsel may misadvise his client as to some relevant aspect of the case when entering into

the plea agreement, in order to preserve the option of subsequently moving to withdraw the plea if the presentencing

report indicates that sentencing is likely to be less favorable

than anticipated.3

Furthermore, in applying its standard to the facts of this

case, the majority fails to appreciate the district court’s view

of the facts. The district judge held an evidentiary hearing on

defendant’s motion to withdraw. She heard testimony from

both the defendant and his prior counsel, who denied having

promised the defendant that he would receive probation if he

pled guilty. The district court then made the factual determination that even accepting that counsel “grossly mischaracterized the likely outcome of the case and rendered deficient

performance,” the defendant had not shown that he would

have withdrawn his guilty plea. 

Normally, such a factual determination is subject to reversal on appeal only if it constituted clear error. The majority,

unwilling to so hold, posits that the district court failed to

understand that it had “discretion to permit defendant to withdraw his plea” even if the defendant did not prove actual prejudice. This statement is wrong on the facts and wrong as a

matter of law. As the district court in essence disbelieved the

defendant, discretion played no role in its denial of the

motion. 

3Here, it is noteworthy that the presentencing report was issued just

days prior to Davis’s first statement to the district court that he wished to

withdraw his guilty plea. See United States v. Nostratis, 321 F.3d 1206

(9th Cir. 2003) (noting that “[i]n the instant case, Nostratis moved to withdraw his plea only after learning from the presentence report that his

likely sentencing range was 135 to 168 months and that the government

would only move for a two-level downward departure.”) (emphasis

added). Although the court also considered Nostratis’s two-year delay to

be a factor in denying his withdrawal motion, it also noted that courts have

rejected plea-change motions where the timing is much shorter. 

6768 UNITED STATES v. DAVIS
Furthermore, the majority errs in holding that an inquiry as

to what constitutes “fair and just reason” for a plea withdrawal must always be divorced from the plea’s validity. The

precedent relied upon by the majority are compatible with

requiring the defendant to show that but for the deficient performance, he would have withdrawn his guilty plea. In United

States v. Ortega-Asciano, 376 F.3d 879, 883 (9th Cir. 2004),

we held that a defendant did not have to show that a “plea was

invalid.” Similarly, United States v. Garcia, 401 F.3d 1011

(9th Cir. 2005) turns on whether a plea is invalid. Both cases,

however, involved changed circumstances that were not

known to the defendants at the time they entered into their

plea agreements, and where there was no procedure in place

to counteract the prejudice of this lack of information.4

This case is different. Although Davis may not have known

of an attorney’s misadvice at the time that he entered the plea,

as part of her standard trial procedure, the trial judge informed

Davis of the full consequences of his plea during the plea colloquy. Thus, the district court had the opportunity to dispel

the prejudice of the defense counsel’s mistaken advice by

advising Davis of the full consequences of entering his plea.

Indeed, Davis’s counsel conceded that the colloquy itself is

unassailable. During the colloquy, Davis stated in open court

that he was informed that he could face a potential sentence

of over eight years in prison. Davis also denied that he was

pleading guilty based on promises not reflected in the plea

agreement. A defendant’s “solemn declarations in open court

carry a strong presumption of verity.” United States v. Rubalcaba, 811 F.2d at 494. 

4Ortega-Asciano involved a defendant who was arguing changed circumstances based on an intervening change in the law. Garcia involved

a defendant who claimed that he would not have pled guilty if he had

known of evidence that was discovered after the time the plea was submitted. 

UNITED STATES v. DAVIS 6769
Once a trial judge has fully complied with the requirements

governing entry of the guilty plea, the “result should be more

than ephemeral.” United States v. Rios-Ortiz, 830 F.3d 1067,

1070 (9th Cir. 1987). Where, as here, a plea colloquy was

thorough and comprehensive, a district court cannot be said

to abuse its discretion when, following an evidentiary hearing,

it concludes that a defendant was not actually prejudiced by

relying on his attorney’s wrong advice. 

As the district court correctly applied the prevailing law of

this circuit when it required Davis to show that he had been

prejudiced by his attorney’s mischaracterization of the sentence, I would affirm this portion of the district court’s decision.5

5

I agree with the majority, however, as to Part B. 

6770 UNITED STATES v. DAVIS