USA V. KYN NAOPE, No. 17-10444 (9th Cir. 2019)
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FILED NOT FOR PUBLICATION DEC 26 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 17-10444 D.C. No. 2:15-cr-00133-GEB-1 v. MEMORANDUM* KYN K. NAOPE, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Submitted July 16, 2019** San Francisco, California Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK,*** District Judge. Kyn Naope pled guilty to a single violation of conspiracy to commit mail fraud in March 2017. The district court sentenced Naope to 60 months * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation. imprisonment, $100 special assessment, and $3,480,499 restitution. On appeal, Naope argues that his counsel rendered ineffective assistance of counsel during sentencing. We have jurisdiction under 28 U.S.C. § 1291 and we affirm without prejudice so that Naope may raise this claim in a collateral proceeding, under 28 U.S.C. § 2255. “[T]he customary procedure in this Circuit for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citation omitted). “Ineffective assistance claims will be considered on direct review only where the record is sufficiently developed to permit determination of the issue or where legal representation is so inadequate that the defendant obviously was denied his Sixth Amendment right to counsel.” United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000) (citation omitted). Here, the record is insufficient for review on direct appeal because it does not show the basis for counsel’s actions. See United States v. McGowan, 668 F.3d 601, 606 (9th Cir. 2012) (declining to review an ineffective assistance of counsel claim on direct appeal because the court could not “tell from [the] record whether the [failure] to seek a new trial . . . was a calculated stratagem or a mere oversight”) (internal quotation marks and citation omitted) (alterations in original). Moreover, counsel’s performance was not obviously inadequate under the Sixth 2 Amendment. See United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978). We therefore affirm without prejudice to Naope raising his ineffective assistance of counsel claims in a collateral attack on his sentence under § 2255. AFFIRMED. 3
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