* 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should not be published and is not precedent except under the limited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. 07-10653

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

NIKIA ALEJANDRO MITCHELL

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CR-384-1

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Nikia Alejandro Mitchell was convicted of one count of conspiring to

distribute cocaine and to possess cocaine with intent to distribute. The district

court determined that he was a career offender and sentenced him to serve 210

months in prison and a five-year term of supervised release. Mitchell appeals

his sentence. He argues that the district court erred by classifying him as a

career offender because he does not have the requisite number of qualifying

convictions, that the district court erred during sentencing by granting him only

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-10653

2

a two-level adjustment in connection with the Government’s U.S.S.G. § 5K1.1

motion, and that the district court erred by failing to properly consider the 18

U.S.C. § 3553(a) sentencing factors. As the Government properly observes, the

record reflects that Mitchell knowingly and voluntarily waived his right to

pursue these claims as part of his plea agreement. See United States v. Story,

439 F.3d 226, 231 (5th Cir. 2006); United States v. Melancon, 972 F.2d 566,

567-68 (5th Cir. 1992). Consequently, we decline to consider them. See

Melancon, 972 F.2d at 567-68.

Mitchell raises one additional claim that is not precluded by his waiver of

his appellate rights. Mitchell argues that counsel rendered ineffective assistance

by failing to objectto his career offender classification on the grounds that he did

not have the requisite prior convictions. We typically decline to consider claims

of ineffective assistance of counsel in direct appeals. See United States v. Miller,

406 F.3d 323, 335-36 (5th Cir. 2005). Nevertheless, this is the rare case in which

it is appropriate to consider such a claim, as the record is sufficient to permit us

to consider Mitchell’s argument. See Massaro v. UnitedStates, 538 U.S. 500, 508

(2003); United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).

To establish ineffective assistance of counsel, Mitchell must demonstrate

both that his attorney’s performance was deficient and that the deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687

(1984). Mitchell’s ineffective assistance claim has merit. Counsel could and

should have objected to the career offender designation based on United States

v. Gonzales, 484 F.3d 712 (5th Cir. 2007), which was released prior to

sentencing. Counsel’s failure to raise such an argument was objectively

unreasonable. See Strickland, 466 U.S. at 688.

Further, counsel’s failure to raise the Gonzales argument prejudiced

Mitchell. If Mitchell had not been classified as a career offender, his guidelines

sentencing range would have been significantly lower than the 210-month
No. 07-10653

1 We offer no opinion as to what sentence Mitchell will or should receive

on remand. For purposes of the instant appeal, we need only conclude that there

is a reasonable probability that the result of the proceedings would have been

different were it notfor counsel’s deficient performance. See Strickland, 466 U.S.

at 694. 

3

sentence that was imposed.1 There is thus a reasonable probability that the

result ofthe proceedings would have been different butfor counsel’s failings. See

Strickland, 466 U.S. at 694.

Mitchell has shown both that counsel rendered a deficient performance by

failing to object to his career offender designation in accordance with Gonzales

and that this omission prejudiced him. He has thus shown that counsel

rendered ineffective assistance in connection with his sentence. His sentence is

VACATED, and this case is REMANDED FOR RESENTENCING.

We note that appellate counsel failed to so much as mention, much less

discuss, the existence and validity of Mitchell’s waiver of his appellate rights in

his brief to this court. Counsel is WARNED that failing to mention such a

waiver in any future brief he may file with this court could result in the

imposition of sanctions.