Milton Smith v. USA, No. 05-13535 (11th Cir. 2007)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 05-13535 Non-Argument Calendar ________________________ AUGUST 20, 2007 THOMAS K. KAHN CLERK D. C. Docket Nos. 04-80339-CV-WJZ & 01-08074 CR-WJZ MILTON SMITH, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (August 20, 2007) Before TJOFLAT, WILSON and PRYOR, Circuit Judges. PER CURIAM: On March 25, 2002, petitioner pled guilty to Count I of a two-count indictment, which charged him with conspiring in violation of 21 U.S.C. § 846 to possess with intent to distribute a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). On April 11, 2003, the district court sentenced him to prison for a term of 108 months and a five-year term of supervised release. On April 12, 2004, petitioner moved the district court to vacate his sentence pursuant to 28 U.S.C. § 2255 on the ground that his attorney rendered ineffective assistance of counsel by failing to object to the imposition of the five-year term of supervised release. The district court denied his motion and his application for a certificate of appealability ( COA ). We likewise denied his application for a COA, and petitioner then petitioned the Supreme Court for a writ of certiorari. In response to his petition, the Solicitor General confessed error: counsel rendered ineffective assistance in not calling to the district court s attention the fact that the five-year term of supervised release the court imposed exceeded the two-three-year range prescribed by the Sentencing Guidelines, specifically U.S.S.G. § 5D1.2(a)(2).1 On January 8, 2007, the Court granted his petition, vacated our judgment, and remanded the case with the instruction that we grant a COA so we 1 Count I of the indictment alleged a Class C felony, in that it described an offense involving a detectable amount of cocaine. At sentencing, the court s probation officer misinformed the court that petitioner s offense was a Class B felony that called for a term of supervised release of three-five years. 2 could consider the Solicitor General s confession of error. We granted the COA, and in its reply brief, the Government has confessed the error the Solicitor General pointed out. We therefore vacate the district court s denial of petitioner s § 2255 motion and remand the case for resentencing. SO ORDERED. 3
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