
    UNITED STATES of America, Appellee, v. Emilia RODRIGUEZ, Defendant-Appellant, Ramon Camilo, Sealed Vehicle # 1, Sealed Vehicle # 2, Fausto Hinojsa, Defendants.
    No. 12-780-cv.
    United States Court of Appeals, Second Circuit.
    July 25, 2014.
    Jane S. Meyers, Brooklyn, NY, for Appellant.
    Paul D. Silver, Assistant United States Attorney, for Richard S. Hartunian, United States Attorney for the Northern District of New York, for Appellees.
    PRESENT: GUIDO CALABRESI, BARRINGTON D. PARKER, GERARD E. LYNCH, Circuit Judges.
   SUMMARY ORDER

Defendant Emilia Rodriguez, who stands convicted after trial of conspiracy to traffic in 100 or more grams of heroin, appeals from an amended judgment entered on February 9, 2012, on remand. See United States v. Rodriguez, 531 Fed.Appx. 148 (2d Cir.2013); United States v. Sealed Vehicle # 1, 440 Fed.Appx. 22 (2d Cir.2011). That judgment sentences Rodriguez to a statutorily mandated minimum prison sentence of 60 months, see 21 U.S.C. § 841(b)(1)(B), a sentence that is 39 months longer than the prison term imposed by the original judgment of the district court. Rodriguez, 531 Fed.Appx. at 148-49. We remanded this matter to the district court again, retaining jurisdiction pursuant to United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994), for fact-finding concerning Rodriguez’s claim that her counsel was constitutionally ineffective in challenging her original judgment of conviction on appeal. Rodriguez, 531 Fed.Appx. at 150; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Forbes v. United States, 574 F.3d 101, 106 (2d Cir.2009) (applying Strickland to appellate counsel). In particular, we indicated that the district court should inquire into counsel’s consultation with Rodriguez about pursuing an appeal on her behalf, and whether the government offered to withdraw its cross-appeal in exchange for Rodriguez’s withdrawal of her appeal. On remand, after accepting affidavits from Rodriguez, her former counsel, and the government, but without holding an evidentiary hearing, the district court issued an Opinion and Order on October 25, 2013, concluding that Rodriguez had not satisfied her burden to demonstrate that she was prejudiced by counsel’s alleged unprofessional errors. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision. We review a district court’s decision not to hold an evidentiary hearing for abuse of discretion. See United States v. Sasso, 59 F.3d 341, 350 (2d Cir.1995).

As noted above, on remand, the district court solicited affidavits from Rodriguez, her former counsel, and the government, but declined to conduct an evidentiary hearing. Based solely on the affidavits, the court found that although Rodriguez’s counsel filed the notice of appeal without her authorization, “the [g]overnment would have filed a direct appeal of Rodriguez’s sentence even if she had not appealed,” and Rodriguez was therefore not prejudiced by counsel’s conduct. SA58. The court also declined to determine whether the Assistant United States Attorney had agreed to stipulate to a mutual withdrawal of appeals, instead concluding that Rodriguez had not shown prejudice because the AUSA was not authorized to make such a commitment.

Under the circumstances, we believe it was incumbent upon the district court to hold an evidentiary hearing. The affidavits submitted by Rodriguez, her former attorney, and the government differ in significant ways, presenting material issues of fact that impede our review of Rodriguez’s ineffectiveness claim. For example, Rodriguez and her former attorney offered conflicting accounts of the contact information he had for Rodriguez. The district court should have resolved this factual dispute and elicited more detailed information from the former attorney concerning his attempts to contact Rodriguez after her sentencing. Additionally, the affidavits of Rodriguez’s former counsel and the government offered conflicting accounts of whether an AUSA offered to withdraw the government’s appeal in exchange for the withdrawal of Rodriguez’s appeal. The district court declined to resolve this factual dispute.

Our prior remand order, however, expressly contemplated that the district court would develop a factual record pertaining to former counsel’s efforts to consult with Rodriguez about filing a notice of appeal, and the government’s putative offer to withdraw its appeal. By failing to hold an evidentiary hearing to resolve factual disputes and elicit greater detail about the circumstances surrounding Rodriguez’s original appeal, the district court disregarded our remand order, and consequently exceeded its discretion. On remand, the district court should resolve the factual disputes we have identified, elicit fuller testimony regarding the government’s decision to pursue its appeal, and otherwise create a factual record that is sufficient to permit review of Rodriguez’s ineffectiveness claim. In addition, we encourage the district court to ask the parties to address what relief, if any, is available to Rodriguez at this time.

For the foregoing reasons, the case is REMANDED to the district court for proceedings consistent with this order. This panel retains jurisdiction to hear Rodriguez’s ineffectiveness claim once the record has been supplemented. See United States v. Leone, 215 F.3d 253, 257 (2d Cir.2000). The mandate shall issue forthwith. 
      
      . In the district court, Rodriguez's appellate counsel declined to represent Rodriguez because counsel is not admitted to practice before the United States District Court for the Northern District of New York. Nonetheless, appellate counsel initially submitted letters to the district court requesting that the court appoint other counsel for Rodriguez and hold an evidentiary hearing. Appellate counsel subsequently informed the district court that she no longer believed it was necessary for the district court to hold an evidentiary hearing or appoint counsel for Rodriguez. As far as can be determined, however, appellate counsel was not Rodriguez's representative before the district court, and Rodriguez accordingly proceeded pro se. Under the circumstances, the district court should have made an independent determination as to the necessity of an evidentiary hearing. We believe the gaps and contradictions in the factual record demonstrate the necessity of an evi-dentiary hearing in this case.
     
      
      . While the government’s affidavit states that AUSA Silver is "not aware of any evidence that would substantiate Rodriguez’s claim that the government would not have pursued an appeal if she had not appealed,” it also states that "the fact that Rodriguez had filed her notice of appeal before the government filed its notice of appeal also was considered,” in "determining whether to proceed with a government appeal.” SA 57. The district court should elicit further testimony and information regarding how the government made its decision to appeal, and should resolve the factual dispute about whether the prosecutor did or did not offer defense counsel an opportunity for a mutual withdrawal of appeals.
     
      
      . We appreciate that the district court's decision not to hold an evidentiary hearing may have been motivated by a laudable desire to permit expeditious resolution of Rodriguez’s appeal. We respectfully invite the district court to again act with celerity in holding an evidentiary hearing, and the parties to promptly apply to this panel for reinstatement of the appeal upon issuance of the supplemented record and the district court's factual findings.
     