Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

MEMORANDUM^** 

Gabriel Guzman-Osuna appeals the denial of his petition for a writ of habeas corpus.

* We review de novo a challenge to a guilty plea alleging ineffective assistance of counsel. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986).

Petitioner does not allege the level of incompetence required by Strickland v. Washington, 466 U.S. 668, 689 (1984). Petitioner asserts his counsel was incompetent because he failed to realize petitioner would deny the factual basis for the government's original allegation that petitioner had used, as opposed to carried, a gun during the offense. Petitioner also argues the lack of factual basis for the gun use charge could have been a winning defense if presented to a jury by a skillful defense attorney. However, the record indicates there was a factual dispute as to whether petitioner used a gun or only carried it. Counsel's tactical decision to advise petitioner to plead guilty rather than submit to a trial in which he might have been found guilty of actually using a gun does not reflect incompetence. We are "not free to engage in after-the-fact second-guessing of strategic decisions made by defense counsel." United States v. Claiborne, 870 F.2d 1463, 1468 (9th Cir. 1989).

Petitioner alleges his attorney mistakenly believed petitioner faced an upward departure on his sentence for the drug trafficking charge because of the presence of the gun. Petitioner argues his sixty month sentence could not have been substantially greater if he had gone to trial because the presentence report recommended a downward adjustment for acceptance of responsibility. However, if petitioner had proceeded to trial and been convicted, the presentence report may not have recommended a downward adjustment for acceptance of responsibility. Without that adjustment, petitioner would have faced a potential sentence of 63 to 78 rather than 60 months.

Petitioner contends his guilty plea was not voluntary and knowing because the judge did not inform him of the constitutional rights he waived by reason of the plea. However, the judge informed petitioner of his rights at the first change of plea hearing, and petitioner acknowledged he understood he would be waiving those rights if he pleaded guilty. The hearing was continued because petitioner denied there was a factual basis for the charge that he had used a weapon, and petitioner pled guilty the following morning to the amended indictment charging him with carrying, rather than using, a weapon. The overnight interval between the judge's informing petitioner of his rights and petitioner's waiver of those rights did not render the plea involuntary or unknowing.

Petitioner argues that because he denied the factual basis for the gun use charge at the first plea hearing, the judge should have allowed him to withdraw his guilty plea to the gun carrying charge. However, petitioner did not deny the existence of a factual basis for the amended gun charge.

Petitioner argues the district court erred in concluding petitioner's guilty plea was not coerced. The district court was not required to believe the testimony of petitioner's aunt that she had been threatened. The district court's contrary factual finding of fact was not clearly erroneous. United States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984).

AFFIRMED.