United States of America, Plaintiff-appellee, v. Marco Anthony Rzeslawski, Defendant-appellant. (two Cases), 103 F.3d 143 (9th Cir. 1996)

Before: BROWNING, THOMPSON, and THOMAS, Circuit Judges

MEMORANDUM^** 

The district court's denial of Marco Anthony Rzeslawski's motion under § 2255 is affirmed.

The appeal is timely. Rzeslawski's motion for reconsideration was filed within 10 days after his § 2255 motion was denied and therefore tolled the time for appeal. See Federal Rule of Appellate Procedure 4(a).

We need not decide whether Rzeslawski's claims are procedurally barred. In any event they are without merit.

The district court did not participate in the plea negotiations in violation of Federal Rule of Criminal Procedure 11(e) (1). Considering the colloquy between the court and counsel as a whole, it reveals that the court understood the parties had agreed on a plea and urged them to act promptly to implement the agreement. See United States v. Frank, 36 F.3d 898, 902-03 (9th Cir. 1994).

The government did not breach its plea agreement to recommend a two level offense reduction if Rzeslawski fully accepted responsibility. Rzeslawski did not fully accept responsibility. See U.S. v. Rutledge, 28 F.3d 998, 1002-03 (9th Cir. 1994). Rzeslawski cannot prevail on his claim of ineffective assistance of counsel based on his attorney's failure to raise this issue since he cannot show the result would have been different had counsel raised the claim. See Strickland v. Washington, 466 U.S. 668, 690, 694 (1984).

Affirmed.