United States v. Hill ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21102
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERLIN HILL, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-883 and H-97-CR-21-1
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November 2, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Verlin Hill, Jr., federal prisoner #59690-079, seeks a
certificate of appealability (“COA”) in order to appeal the
district court’s dismissal of his motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. He argues on
appeal that (1) his counsel was ineffective for failing to
challenge the Government’s failure to dismiss the two conspiracy
counts of the indictment and to recommend a cap of 20 years’
imprisonment, as required by the plea agreement, and (2) his
conviction for aiding and abetting in the use and carrying of a
*
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that this opinion should not be published and is not precedent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.
No. 98-21102
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firearm during and in relation to a drug trafficking offense must
also be vacated because he cannot be held liable for the
substantive offenses of his co-conspirators in the absence of a
conspiracy conviction. He has abandoned all of his other issues
raised in district court by failing to argue them in the body of
his brief on appeal. See Perillo v. Johnson, 79 F.3d 441, 443
n.1 (5th Cir. 1996)(appellant may not incorporate by reference
portions of the district court record into his brief, and waives
all issues not argued on appeal).
This court may grant COA only if Hill has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). Hill has failed to make such as showing regarding
the dismissal of the conspiracy counts and vacatur of his aiding
and abetting conviction. The district court, however, failed to
make any specific findings regarding whether Hill’s counsel was
ineffective for failing to object to the Government’s failure to
recommend a 20-year cap on imprisonment at sentencing.
The district court must set out its findings of fact and
conclusions of law when ruling on a § 2255 motion unless the
record conclusively shows that a defendant is entitled to no
relief. See § 2255; United States v. Daly, 823 F.2d 871, 872
(5th Cir. 1987). A statement of findings of fact and conclusions
of law is "indispensable to appellate review." Daly, 823 F.2d at
872. Examination of the record does not reveal a definitive
recommendation by the Government regarding the 20-year
imprisonment cap. There are indications in the record, however,
that the Government’s interpretation of the relevant plea
No. 98-21102
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agreement provisions differed from the plain meaning
interpretation espoused by the PSR.
The record therefore does not conclusively show that Hill is
not entitled to relief regarding whether his counsel was
ineffective for failing to object to the Government’s failure to
recommend a 20-year cap on imprisonment at sentencing.
Accordingly, we grant the motion for COA, vacate, and remand to
allow the district court to make factual findings and conclusions
of law regarding this issue.
COA GRANTED; VACATED AND REMANDED.