Richard Carlton Risher v. United States

Appellant Richard Carlton Risher claims that his counsel’s failure to advise him before he pleaded guilty that he might be sentenced under the Sentencing Reform Act constituted ineffective assistance of counsel in violation of the Sixth Amendment. The district court rejected the claim and denied his petition for habeas corpus under 28 U.S.C. § 2255 . We reverse and remand to the district court for a determination whether Risher’s counsel failed to advise him of the potential applicability of the career offender provisions of the Guidelines, and, if that failure is established, for a determination whether it was prejudicial.

At the time Risher pleaded guilty it was the law of this circuit that the Sentencing Reform Act was unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), vacated sub nom. U.S. v. Chavez-Sanchez, 488 U.S. 1036 , 109 S.Ct. 859 , 102 L.Ed.2d 984 (1989). Before Risher’s sentencing hearing, however, it had become the law of the land that the Act was constitutional. U.S. v. Mistretta, 488 U.S. 361 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989). Risher claims, and we so hold, that his counsel’s failure to warn him before he entered his guilty plea of…