FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 23, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-3096
                                             (D.C. Nos. 6:11-CV-01300-MLB and
          v.                                       6-08-CR-10188-MLB-1)
                                                         (D. Kansas)
 ROBERT F. ROBERTS,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On July 20, 2012, this court granted Appellant Roberts a certificate of

appealability permitting him to appeal the district court’s refusal to allow him to



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
amend his §2255 motion to add claims his trial and appellate counsel were

ineffective for failing to challenge the calculation of his criminal history. United

States v. Roberts, No. 12-3096, 

, at *2-3 (10th Cir. July 20,

2012). Relying on information in the Presentence Investigation Report (“PSR”),

Roberts asserted he was sentenced on the same day for two offenses that were not

separated by an intervening arrest and, thus, the sentences should not have been

counted separately for purposes of assessing criminal history points. See USSG

§ 4A1.2(a)(2). Appellee filed a responsive brief on September 11, 2012, and

Roberts filed his reply on September 26, 2012.

      The parties have attached to their respective briefs various documentation

from the United States Probation and Pretrial Services Office, the Kansas Bureau

of Investigation, the Wichita Police Department, and the Sedgwick County

District Court, all relating to Roberts’s convictions in Case Nos. 99CR1925 and

99CR1926. From these documents, it appears that on May 11, 1999, Roberts was

detained by Wichita Police after he robbed an individual. The criminal complaint

relating to this robbery was filed in Juvenile Court on May 18, 1999. The matter

was later referred for adult prosecution and assigned Case No. 99CR1925. It also

appears that on May 12, 1999, Roberts escaped while being held in lawful

custody. This escape was charged by an Information dated July 22, 1999, and

assigned Case No. 99CR1926.




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      Appellee asserts the May 12th escape occurred while Roberts was being

held in lawful custody for the robbery charged in Case No. 99CR1925 and, thus,

his criminal history was properly calculated because he committed the second

offense (i.e., the escape) after being arrested for the first offense (i.e., the

robbery). See USSG § 4A1.2(a)(2). The documentation submitted by the parties

does not conclusively show this to be true. The escape occurred one day after the

robbery but one week before the criminal complaint charging the robbery was

filed. According to Roberts, he was in custody at the time of the escape because

he had been arrested on May 11, 1999, not for the robbery, but for an outstanding

bench warrant relating to a 1996 theft offense. This assertion appears to be borne

out by the Information filed in Case No. 99CR1926 which indicates Roberts

escaped while being held in lawful custody for a theft crime charged in Case No.

96JV1236, not while he was being held for the robbery charged in Case No.

99CR1925.

      It is unclear from the record whether Roberts was arrested for the offense

charged in Case No. 99CR1925 prior to committing the offense charged in Case

No. 99CR1926. If Roberts is correct that the sentences he received in those two

cases should not be counted separately, his criminal history points are six and his

advisory guidelines range is 41-51 months, not 51-61 months. Thus, he has raised

a facially plausible claim of ineffective assistance of counsel based on his

assertion counsel failed to challenge the improper calculation of his criminal

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history. Because this claim of ineffective assistance of counsel has not yet been

addressed by the district court, that court is in the best position to make the

necessary factual findings. Accordingly, we reverse the district court’s denial of

habeas relief solely on the issue of whether Roberts should be permitted to amend

his § 2255 motion to raise claims his trial and appellate counsel were ineffective

for failing to challenge the calculation of his criminal history and remand this

matter to the district court with instruction to permit Roberts to amend his § 2255

motion to add such claims.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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