BY THE COURT:
Louis Guzman Gaitan pleaded guilty to conspiracy to possess with intent to distribute heroin. In his plea agreement, he waived the right to appeal his sentence unless it was based on an "upward departure" from the Sentencing Guidelines.
Douglas M. Durham was appointed to represent Gaitan on appeal. Although the district court did not make an upward departure, Gaitan, represented by Durham, challenged the two-level increase in Gaitan's base offense...
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