United States v. Wayne Alfred Day

Good Law
2002 Daily Journal DAR 3745·285 F.3d 1167·2002 Cal. Daily Op. Serv. 3070·2002 U.S. App. LEXIS 6569
United States Court of Appeals for the Ninth CircuitApril 10, 200200-56525California2,542 words

Opinion

Opinion

Goodwin, J.

Wayne Day appeals the judgment denying his motion to vacate, set aside or correct sentence, filed pursuant to 28 U.S.C. § 2255 . He contends that he was denied effective assistance of counsel. We have jurisdiction under 28 U.S.C. § 2253 and we reverse and remand for re-sentencing.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against Day arose from two drug sales that he and his co-defendant made to a confidential informant. In the first transaction, Day sold powder cocaine and, in the second transaction, Day sold cocaine base (“crack” cocaine).

Day was indicted on three counts: (1) conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) distribution of a mixture containing approximately 238.3 grams of cocaine, in violation of 21 U.S.C. § 841 (a)(1); and (3) distribution of a mixture containing approximately 250.8 grams of cocaine base, in violation of 21 U.S.C. § 841 (a)(1).

Prior to trial, the government made a plea offer to Day. In exchange for Day’s guilty plea, the government offered to recommend to the court that Day’s base offense level be 34 and that he receive a three-point…

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