USA V. JOSE TORRES-GUARDADO, No. 09-36095 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 19 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-36095 D.C. Nos. 1:09-cv-00006-RFC 1:07-cr-00022-RFC-1 v. JOSE ANGEL TORRES-GUARDADO, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the District of Montana Richard F. Cebull, District Judge, Presiding Argued and Submitted December 5, 2012 Seattle, Washington Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District Judge.** Federal prisoner Jose Angel Torres-Guardado appeals the district court s denial of his 28 U.S.C. § 2255 motion. At issue is whether appellate counsel * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. ** rendered ineffective assistance by failing to appeal the inadequate factual basis for Torres-Guardado s Rule 11 guilty plea to the charge of conspiracy to distribute methamphetamine. We have jurisdiction under 28 U.S.C. § 2255, and we affirm. Analyzing Torres-Guardado s ineffective assistance claim under Strickland v. Washington, 466 U.S. 668 (1984), we agree with the district court s decision that Torres-Guardado has failed to demonstrate that his Sixth Amendment right to counsel was violated. Specifically, Torres-Guardado has not established that he suffered prejudice as a result of his counsel s failure to appeal the inadequate factual basis for his guilty plea.1 Documents produced by the government in discovery show that Torres-Guardado purchased drugs from a co-conspirator in Denver. Torres-Guardado also admitted to the magistrate judge that he did not manufacture the drugs himself. Based on the entire record, Torres-Guardado has failed to show a reasonable probability that but for the alleged Rule 11 error he would not have entered the guilty plea. See United States v. Dominguez Benitez, 1 An ineffective assistance of counsel claim is analyzed under the two-part test developed in Strickland. The defendant must show that counsel s performance was deficient and the defendant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. The court may address these prongs in either order and it need not analyze both parts if the defendant cannot establish either prong. Id. at 697. 2 542 U.S. 74, 83 (2004); United States v. Monzon, 429 F.3d 1268, 1271-72 (9th Cir. 2005). AFFIRMED. 3