No. 23-3423 ___________________________

Larenzo Burnett,

lllllllllllllllllllllPetitioner - Appellant,

v.

United States of America,

lllllllllllllllllllllRespondent - Appellee. ____________

Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids ____________

Submitted: September 25, 2024 Filed: January 15, 2025 ____________ Before COLLOTON, Chief Judge, LOKEN and SHEPHERD, Circuit Judges. ____________ COLLOTON, Chief Judge.

Larenzo Burnett pleaded guilty to possession of a firearm by a prohibited person. The district court1 accepted a sentencing agreement between the parties and imposed a term of 99 months and 14 days in prison. Burnett later filed a motion to

1 The Honorable C.J. Williams, Chief Judge, United States District Court for the Northern District of Iowa. vacate his sentence under 28 U.S.C. § 2255, alleging that he received ineffective assistance of counsel because his attorney failed to file a notice of appeal. The district court denied the motion, and we affirm.

I.

In December 2021, Burnett pleaded guilty to possession of a firearm by a prohibited person. See 18 U.S.C. § 922(g)(1), (g)(3). During the presentence investigation, a dispute arose about whether Burnett’s prior conviction under Iowa Code § 708.6(2) constituted a conviction for a “crime of violence” that warranted a six-level increase in the base offense level under USSG § 2K2.1(a)(4)(A).2 The probation office recommended that the increase applied; Burnett objected. Before the district court ruled on the matter, however, the parties reached a sentencing agreement under which Burnett withdrew his objection and stipulated that the prior conviction was for a crime of violence. Burnett was represented by an experienced assistant federal public defender.

The district court determined an advisory guideline sentence of 120 months’ imprisonment, the statutory maximum punishment. See 18 U.S.C. § 924(a)(2) (2020) (amended 2022); USSG § 5G1.1(a). After applying credit for time served, the court imposed a sentence of 99 months and 14 days’ imprisonment. The sentencing hearing occurred on September 8, 2022.

2 Iowa Code § 708.6(2) provides as follows:

A person commits a class “D” felony when the person shoots, throws, launches, or discharges a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people, and thereby places the occupants or people in reasonable apprehension of serious injury or threatens to commit such an act under circumstances raising a reasonable expectation that the threat will be carried out.

-2- The next day, September 9, this court decided United States v. Frazier, 48 F.4th 884 (8th Cir. 2022), which held that a violation of Iowa Code § 708.6(2) is not categorically a crime of violence under the sentencing guidelines. Id. at 887. Burnett eventually filed a notice of appeal on December 30, 2022, in an effort to rely on Frazier, but this court dismissed the appeal as untimely.

Burnett then moved to vacate his sentence under 28 U.S.C. § 2255. Burnett argued that his sentence was imposed in violation of his right to effective assistance of counsel under the Sixth Amendment because his attorney allegedly ignored Burnett’s requests to file a timely notice of appeal.

After an evidentiary hearing, the di