Robert C. Evenstad v. United States

Evenstad pleaded guilty to bank robbery and was sentenced to twelve years in prison. He did not appeal. Four years later, he petitioned for habeas corpus. He claims that his sentence should be vacated because one of the prior offenses considered in sentencing was tainted by ineffective assistance of counsel. We remand so that the district judge can make certain determinations and possibly hold a hearing.

I. Facts.

Evenstad robbed a bank, using what looked like a handgun and wearing a ski mask. FBI agents tracked him and caught him with the gun, ski mask, and most of the money. He pleaded guilty to an information charging only simple bank robbery, 18 U.S.C. § 2113 (a). The government dismissed the indictment charging both bank robbery and assault with a dangerous weapon during a bank robbery, 18 U.S.C. § 2113 (a) and. 2113(d). The gun was a plastic replica, not a real gun capable of firing bullets. Evenstad committed this crime in 1986, before the federal sentencing guidelines became effective. In his written, signed plea agreement, the government promised “to make a binding recommendation to the Court that any term of incarceration to which defendant EVENSTAD is sentenced not be…