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this opinion should not be published and is not precedent except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

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-20363

Summary Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRAIG MICHAEL COSCARELLI,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-1044)

_________________________________________________________________

July 8, 1998

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Craig Michael Coscarelli, federal prisoner # 23429-013,

appeals both the district court’s summary dismissal of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct sentence and

the imposition of a $250 sanction for violating his plea agreement.

He contends, inter alia, that he was deprived of the effective

assistance of counsel in violation of the Sixth Amendment, which
2

resulted in an involuntary plea and an inadequate appeal. Along

this line, Coscarelli contends that the sanction was wrongly

imposed because his § 2255 motion did not violate his plea

agreement. 

Ineffective assistance of counsel claims require the

resolution of mixed questions of law and fact. See United States

v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). But, in this case,

the district court did not make factual findings or conclusions of

law with respect to the claims; it concluded only “that the

defendant is entitled to no relief”. And, in response to

Coscarelli’s motion for clarification of the sanction, the district

court stated:

The petitioner’s allegation that his plea was

involuntary is a sham. He was not only fully

admonished concerning his plea, he made no

complaint about his attorney when the inquiry

was made. The petitioner’s plea agreement

also reiterates and reinforces the

voluntariness of his plea. The petitioner

knows that he cannot attack the plea except by

a complaint that his attorney did not provide

effective assistance []. That issue has been

appealed and resolved [unfavorably] to the

petitioner. This exercise is foolish and

wasteful.

(Emphasis added.)

Under his plea agreement, Coscarelli agreed to waive his right

to direct appeal under 18 U.S.C. § 3742; but, that agreement does

not mention § 2255 proceedings or collateral constitutional

challenges to his plea and sentence. Therefore, Coscarelli’s plea
3

agreement did not contain a waiver of his right to collaterally

attack his conviction and sentence.

With respect to the $250 sanction, we review a district

court’s Rule 11 determination and decision to impose sanctions,

under its inherent powers, for abuse of discretion. Krim v.

BancTexas Group, Inc., 99 F.3d 775, 777 (5th Cir. 1996). “A

district court abuses its discretion if it imposes sanctions based

upon an erroneous view of the law or a clearly erroneous assessment

of the evidence.” Id. The district court’s stated reason for

imposing the sanction on Coscarelli was “for violating his plea

agreement”. But, as discussed, Coscarelli’s plea agreement did not

waive his right to collateral attack.

Accordingly, both the summary dismissal and the sanction are

VACATED; the case is REMANDED for further proceedings; and,

consequently, Coscarelli’s motion for appointment of counsel on

appeal is DENIED as moot. In so holding, we express no opinion as

to whether Coscarelli’s claims are meritless or whether sanctions

are warranted under a different rationale.

VACATED and REMANDED; MOTION FOR APPOINTMENT OF COUNSEL DENIED