IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11414 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS ELVIS EDWARDS; also known as SNOW,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:97-CV-2697-H USDC No. 3:96-CR-77-2-H - - - - - - - - - -

December 23, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Thomas Elvis Edwards, federal prisoner # 28694-077, appeals

from the district court’s denial of his

motion,

arguing that he was denied effective assistance of counsel due to

his counsel’s failure to perfect an appeal. Edwards alleges that

he asked his attorney to file an appeal, his attorney allegedly

said that he would file an appeal, but that counsel never

perfected the appeal.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-11414 -2-

A criminal defendant has a constitutional right to effective

assistance of counsel in his first appeal as of right, absent a

waiver of that right. See Evitts v. Lucey,

(1985). The failure of counsel to perfect an appeal upon request

of his client may constitute ineffective assistance of counsel.

United States v. Guerra,

(5th Cir. 1996).

In the plea agreement, Edwards explicitly reserved, among

other things, the right to appeal “any error as a result of

incorrect calculation of the guidelines.” Edwards preserved at

least three sentencing issues for appeal by filing objections to

the presentence report. In its letter brief, the Government

concedes that Edwards’ allegations raise a factual issue with

respect to his claim that his attorney failed to filed a notice

of appeal as Edwards had requested. Accordingly, we VACATE the

district court’s judgment and REMAND the case for the district

court to determine whether there has been an actual or

constructive complete denial of any assistance of appellate

counsel.

VACATED AND REMANDED.