IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10498 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GURRUSQUIETA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CV-993-P (3:97-CR-158-19-P) -------------------- March 16, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

This court granted a certificate of appealability on the

issue whether the district court erred by failing to consider the

reply filed by Juan Gurrusquieta, federal inmate #30750-077, as a

liberally construed amendment to his

motion. A

district court’s denial of a motion to amend is reviewed for an

abuse of discretion. Dussouy v. Gulf Coast Inv. Corp.,

(5th Cir. 1981). Moreover, courts are required to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10498 -2-

construe liberally the filings of pro se litigants. See United

States v. Riascos,

(5th Cir. 1996).

Gurrusquieta’s reply provided further details on his

ineffective-assistance claim concerning the advice and

information counsel gave Gurrusquieta after sentencing. It is

unclear from the record whether the district court considered

Gurrusquieta’s reply at all.

The Government requests a remand in order for the district

court to resolve factual issues that may be dispositive of

Gurrusquieta’s claim that counsel rendered ineffective assistance

in his advice and information to Gurrusquieta concerning his

right to appellate counsel for the direct appeal. Our review of

the record, including the court’s admonishment to Gurrusquieta at

sentencing, fails to reveal whether Gurrusquieta was informed of

his right to seek appointed counsel for appeal if he could not

afford to retain counsel. Whether counsel’s assistance amounted

to deficient performance depends on the information Belt gave

Gurrusquieta after sentencing about acquiring retained appellate

counsel or about seeking appointed counsel if Gurrusquieta could

not afford retained counsel. See Roe v. Flores-Ortega,

(2000). Presently, the record fails to provide

findings of fact concerning what counsel told Gurrusquieta, and

Gurrusquieta’s constitutional right to appellate counsel is

arguably implicated.

For the district court to deny

relief

without holding an evidentiary hearing, the record must

conclusively demonstrate that Gurrusquieta is not entitled to No. 00-10498 -3-

relief. United States v. Bartholomew,

(5th Cir.

1992). In light of the absence of factual findings on what

counsel advised Gurrusquieta and in light of the Government’s

request for a remand, we VACATE the district court’s denial of

relief and REMAND for further proceedings,

including an evidentiary hearing.

VACATED and REMANDED.