Dowell v. Unted States, No. 10-2912 (7th Cir. 2012)
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Charged with possessing with the intent to distribute 50 grams or more of a substance containing cocaine base, 21 U.S.C. 841(a)(1), Dowell plead guilty in return for the government’s agreement to withdraw an information filed under 21 U.S.C. 851, alleging that Dowell had previously been convicted of a felony drug offense. Without that withdrawal, Dowell would have faced a mandatory minimum sentence of 20 years’ imprisonment. The court nonetheless applied the “career offender” guideline, U.S.S.G. 4B1.1, and imposed a sentence of 180 months. Although Dowell claims to have instructed his attorney to file, a notice of appeal was not filed within 10 days, as required for timely filing. Dowell, therefore, filed a 28 U.S.C. 2255 motion asserting that failure to file constituted ineffective assistance of counsel. The government opposed the motion, arguing that Dowell’s agreement in his plea not to challenge his sentence on collateral attack precluded relief. The district court agreed with the government. The Seventh Circuit reversed and remanded for determination as to whether Dowell told his attorney to file the appeal.
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