[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-11265                ELEVENTH CIRCUIT
                                                          NOVEMBER 18, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                    D. C. Docket Nos. 08-20728-CV-PAS,
                             07-20420-CR-PAS

ORESTES ALVAREZ-JACINTO,



                                                           Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (November 18, 2010)

Before BLACK, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Orestes Alvarez-Jacinto appeals from an order denying his 28 U.S.C. § 2255
motion to vacate his conviction and sentence. The issue certified for appeal is

whether the district court erred by failing to hold an evidentiary hearing on the

§ 2255 motion.

                                          I.

      In June 2007, Alvarez pleaded guilty to conspiracy to commit Medicare

fraud, 18 U.S.C. § 1349. During his plea hearing, Alvarez testified that he was

taking Aricept, a prescription drug that can alleviate some symptoms of

Alzheimer’s disease. When asked why he was taking Aricept, Alvarez mistakenly

said that it was for his high blood pressure. Alvarez did testify that he was having

problems with his memory, but he attributed those problems to his age and stress

rather than Alzheimer’s or dementia. When the Assistant United States Attorney

asked whether Alvarez was taking any medication for Alzheimer’s, Alvarez said

that he was not. No one corrected this misstatement or told the district judge that

Alvarez, who was then 80, had been diagnosed with memory impairment and

early-stage dementia several months before the hearing. Neither Alvarez’s lawyer

nor the AUSA raised any questions about Alvarez’s competence, and the district

court accepted his guilty plea.

      Three months after his plea hearing, Alvarez was once again diagnosed as

suffering from mild cognitive impairment. At no point before Alvarez’s



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sentencing was a competency hearing held. Alvarez received a definite diagnosis

of Alzheimer’s one month after he was sentenced.

      Although Alvarez did not appeal from his conviction, he filed a 28 U.S.C.

§ 2255 motion to vacate his conviction and sentence, arguing that his guilty plea

had not been knowing and voluntary because he had been mentally incompetent

when it was taken. The district judge referred the motion to a magistrate judge,

who recommended that it be denied. The district court adopted the magistrate’s

report and recommendation. Neither the district judge nor the magistrate held a

hearing on the motion.

                                           II.

      A district court must hold an evidentiary hearing on a § 2255 motion unless

“the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief.” 28 U.S.C § 2255(b) (emphasis added). In other

words, a hearing is required unless the record shows that the movant’s contentions

are meritless. Anderson v. United States, 

, 706 (11th Cir. 1991).

      We cannot say that the motion, files, and records of this case conclusively

establish that Alvarez is not entitled to relief. On the contrary, the portions of the

record cited in the magistrate judge’s report indicate that Alvarez’s claim is not




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meritless: when he pleaded guilty Alvarez testified that he was taking Aricept

(although the trial judge was misinformed as to the reason why); several medical

reports filed before his sentencing indicated that his cognitive capacity was

diminished at the time of his plea hearing; and at the hearing itself Alvarez testified

that he was being treated for memory problems. Furthermore, Alvarez’s

competency was never formally evaluated before the plea hearing. All of these

facts raise the question whether Alvarez was competent when he pleaded guilty.

Because the record does not foreclose Alvarez from ultimately prevailing on his

§ 2255 motion, he is entitled to an evidentiary hearing. Accordingly, the district

court’s order is vacated, and this case is remanded for an evidentiary hearing on the

§ 2255 motion.

      VACATED AND REMANDED.




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