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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10829
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00099-WS-MU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ROOSHON OSBORNE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(November 12, 2020)
Before WILSON, MARTIN, and LAGOA, Circuit Judges.
PER CURIAM:
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Mario Osborne appeals his conviction and 262-month sentence for possession
with intent to distribute crack cocaine. Osborne argues that he received ineffective
assistance of counsel because his counsel persuaded him to plead guilty by
affirmatively misinforming that he would not receive more than a term of 120-
months imprisonment. Osborne asserts that the record is sufficiently developed to
review this claim on direct appeal because the district court held an evidentiary
hearing, at which he and his former attorney testified, on his claim of ineffective
assistance of counsel for failing to file a notice of appeal. We remand for further
proceedings.
We review de novo an ineffective-assistance claim, which is a mixed question
of law and fact. Caderno v. United States,
256 F.3d 1213, 1216-17 (11th Cir. 2001).
A defendant raising an ineffective-assistance claim must show both that (1)
counsel’s performance was constitutionally deficient, i.e., that it fell below an
objective standard of reasonableness under prevailing professional norms, and (2)
the deficient performance prejudiced the defense. Strickland v. Washington,
466
U.S. 668, 687 (1984). To prove prejudice in the context of a guilty plea, a defendant
must show a reasonable probability that, but for his attorney’s errors, he would not
have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart,
474
U.S. 52, 58 (1985).
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In most instances, a
28 U.S.C. § 2255 motion to vacate is preferable to a direct
appeal for deciding ineffective-assistance-of-counsel claims because the factual
basis for such claims is almost never developed before a direct appeal but can be
established in the district court on collateral review. United States v. Padgett,
917
F.3d 1312, 1316-17 (11th Cir. 2019). Nevertheless, we will consider an ineffective-
assistance claim on direct appeal where the record is sufficiently developed. United
States v. Camacho,
40 F.3d 349, 355 (11th Cir. 1994), overruled in part on other
grounds by United States v. Sanchez,
269 F.3d 1250 (11th Cir. 2001). “[A] claim of
ineffective assistance of counsel may not be raised on direct appeal where the claim
has not been heard by the district court nor a factual record developed.” United
States v. Khoury,
901 F.2d 948, 969 (11th Cir. 1990).
Here, Osborne filed a motion to vacate his sentence pursuant to
28 U.S.C.
§ 2255, alleging that he received ineffective assistance of trial counsel. Specifically,
he contends that Thomas advised him that he would only receive 10 years if he
signed the plea agreement and that Thomas failed to file a notice of appeal despite
Osborne’s request.
At an evidentiary hearing, Thomas testified that he and Osborne calculated
that 10 years would be the low-end of the possible Guidelines sentencing range but
they “knew that there was the possibility of the Government pursuing [a] career
offender [enhancement].” Thomas also testified that the possibility of a longer
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sentence due to an adjudication as a career offender “was certainly a concern . . . that
[Osborne and Thomas] discussed.” Osborne, by contrast, testified that he signed the
plea agreement after Thomas promised him that he would not receive more than 120-
months imprisonment.
The magistrate judge who presided over the evidentiary hearing did not make
a finding as to whether Thomas made such a promise. Instead, the Report and
Recommendation found that Thomas was ineffective as trial counsel by virtue of his
failure to file a notice of appeal for Osborne. The district judge adopted the
magistrate judge’s Report and Recommendation, vacated the prior judgment and
entered an identical judgment, imposing the same 262-month sentence so that
Osborne’s time to file a notice of appeal would begin anew. The sentence accounted
for Osborne’s designation as a career criminal. Additionally, the district judge
dismissed without prejudice the other claims the motion raised. Osborne filed a
timely appeal.
On appeal, Osborne argues that Thomas was ineffective as trial counsel.
Specifically, he asserts that Thomas “affirmatively misinformed him that his
sentence would not exceed 10 years” if he pleaded guilty. The government argues
that this Court does not have a sufficient basis to review the claim that Thomas was
ineffective counsel when explaining the consequences of the plea agreement because
Osborne first raised the claim during the pendency of his § 2255 motion and the
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district court did not directly reach that argument. Osborne, by contrast, argues that
the evidentiary hearing still provides enough of a record for this Court to decide the
matter before it.
We conclude that neither party is correct. While the magistrate judge held an
evidentiary hearing that provided relevant testimony on this issue, the hearing’s
focus and the judicial factual findings made afterward related only to the
denial-of-appeal claim. At the evidentiary hearing, however, Thomas testified that
he discussed the terms of the plea with Osborne before the latter signed it. While
Thomas conceded that Osborne expected his sentence to be the 10-year statutory
minimum, Thomas testified that they “knew that there was the possibility of the
Government pursuing career offender [status].” According to Thomas, it “was
certainly a concern . . . that [he and Osborne] discussed.” Osborne, by contrast,
testified that the 10-year sentence was more than just an expectation. Osborne
testified that Thomas “said I promise you that it wouldn't go over 120 months. You
got my word.”
Because there is conflicting evidence in the record regarding whether
Osborne’s counsel promised him a 10-year sentence and because the district court is
“in the best position to make credibility choices among various pieces of testimony
. . . .” United States v. Reeves,
742 F.3d 487, 507 (11th Cir. 2014), we remand this
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case to the district court in order to determine whether Thomas advised Osborne that
he could receive a sentence longer than the 10-years sentence that Osborne expected.
REMANDED FOR FURTHER PROCEEDINGS.
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