
    Tyrone WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 07-2343.
    United States Court of Appeals, Seventh Circuit.
    Submitted April 8, 2008.
    
    Decided April 14, 2008.
    Tyrone Williams, Lexington, KY, pro se.
    Margaret Hickey, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.
    Before FRANK H. EASTERBROOK, Chief Judge, RICHARD A. POSNER, Circuit Judge and DIANE P. WOOD, Circuit Judge.
    
      
       This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.App. P. 34(a); Cir. R. 34(f).
    
   Order

Our initial decision in this case, 215 F.3d 776 (7th Cir.2000), affirmed Williams’s conviction but remanded for resentencing within the range of 360 months to life. The district court chose 360 months, the lowest available. Williams did not appeal.

In this collateral proceeding under 28 U.S.C. § 2255, Williams accuses his lawyer of ineffective assistance for failing to appeal at his request. The district court denied relief without an evidentiary hearing, ruling that an appeal would have been pointless. In this court the United States has confessed error, and properly so. The district judge may well be right that an appeal would have been pointless, but under Anders v. California, 386 U.S. 264, 87 S.Ct. 1032, 18 L.Ed.2d 40 (1967), the decision whether a given appeal is frivolous is made by the court of appeals, not the defense lawyer or the district judge. That’s why the Supreme Court held in Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), that failure to take an appeal at a defendant’s timely request is ineffective assistance without regard to the district judge’s assessment of prejudice (or lack thereof) caused by the omission. See also Castellanos v. United States, 26 F.3d 717 (7th Cir.1994).

It remains to be determined whether Williams asked his lawyer to file a notice of appeal. The judgment of the district court is vacated, and the case is remanded for an evidentiary hearing devoted to that question. If Williams told his lawyer to file a notice of appeal, then a new judgment must be entered from which an appeal may be filed.  