U.S. v. Manzo, No. 10-35848 (4-5-12)(Gould with Schroeder and Alarcon).

On a 2255, arguing IAC, the petitioner got some relief for some bad plea advice. The petitioner had entered into a plea agreement but was blind sided, as was the government, by the grouping rules, which lumped together the manufacturing amounts of meth with the distribution. The offense level shot up to 38 from an expected 34. Moreover, the government, at sentencing, did not even argue for acceptance, although the plea said it would so recommend. The 9th vacated the sentence, and remanded. It found that counsel had been ineffective in failing to advise about the grouping rules; and when made aware, had failed to withdraw. The 9th hesitated in finding prejudice, however, because of the possibilities of the petitioner not having much choice, or other means. The determination of prejudice would be remanded to the court. The 9th did the same with the issue of the breach of plea, finding that the question of prejudice needed examination. The case went to a different judge.

Although the opinion came out on April 5, it contained no cite or analysis of the two recent Supreme Court IAC plea cases, Frye and Cooper.

Congratulations to AFPD Matt Campbell, Federal Defenders of E. Wa. (Spokane).