Tenth Sidesteps Probable IAC Issue

U.S. v. Klima, 2007 WL 2193683 (8/1/07)(unpub'd) - The 10th acknowledges the defendant's allegations, if true, would entitle him to avoid application of the plea agreement appeal and collateral relief waiver. He alleged his counsel mislead him about the guideline range in that counsel did not tell him a prior conviction could be classified as a crime of violence to enhance his offense level from 12 to 20 under § 2K2.1(a)(4)(A). Counsel indicated at sentencing that the defendant would appeal the d.ct.'s determination that the prior conviction was for a crime of violence. The appeal waiver clearly did not permit such an appeal. So, if the allegations were true the defendant would have proved ineffective assistance ("IA") with respect to the appeal waiver. But, the record was not adequate to allow the 10th to address the IA issue. So, the defendant would have to go the 2255 route.