FILED
NOT FOR PUBLICATION JUL 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-35504
Plaintiff - Appellee, D.C. Nos. 6:11-cv-70004-HO
6:07-cr-60015-HO
v.
THOMAS WESLEY BOREN, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted July 8, 2013**
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
Thomas Boren appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his 120-month sentence. Boren contends that
his counsel was ineffective during plea bargaining. See Lafler v. Cooper, 132 S.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Ct. 1376, 1384 (2012). We review denial of a 28 U.S.C. § 2255 motion and the
effectiveness of counsel de novo. United States v. Manzo, 675 F.3d 1204, 1209
(9th Cir. 2012).
To demonstrate ineffective assistance of counsel, Boren must show: (1)
counsel’s representation fell below an objective standard of reasonableness; and (2)
prejudice. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The two-part
Strickland test applies to claims of ineffective assistance of counsel during plea-
bargaining. Lafler, 132 S. Ct. at 1384.
Counsel’s advice that Boren reject the April 2006 offer was not
unreasonable because counsel had not had an opportunity to inspect the hard drive
on Boren’s computer and it was possible that there were fewer images on the hard
drive than the government alleged. Moreover, the record indicates that counsel
could not have realistically accessed the hard drive during the narrow window the
April 2006 offer was subject to acceptance. Counsel’s affidavit clearly sets forth
that he was aware of both the distribution component of the case and the specific
distribution enhancement pursuant to United States Sentencing Guidelines
§ 2G2.2(b)(3)(B).
Counsel’s theory that a defendant does not “possess” images that were
deleted before the date of the alleged possession finds support in subsequent case
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law. See United States v. Flyer, 633 F.3d 911, 919–920 (9th Cir. 2011). It was
therefore not unreasonable for counsel to advance that theory. Nor was it
unreasonable for counsel to challenge enhancements for material portraying
sadistic or masochistic conduct, U.S. Sentencing Guidelines Manual § 2G2.2(b)(4),
or distribution, id. § 2G2.2(b)(3)(B), despite the evidence that supported those
enhancements.
Even if counsel’s performance had fallen below an objective standard of
reasonableness, Boren is unable to demonstrate that the government would not
have withdrawn the offer or that the court would have accepted it. See Lafler, 132
S. Ct. at 1385. “A plea agreement that has not been entered and accepted by the
trial court does not bind the parties.” United States v. Fagan, 996 F.2d 1009, 1013
(9th Cir. 1993) (emphasis added). Later correspondence from the government
indicated that the government “overlooked” the distribution enhancement when it
presented the April 2006 offer.
Because the April 2006 offer contemplated that Boren’s guilty plea would be
entered pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), the
government’s recommended sentence would not have been binding on the district
court. In light of the strong evidence that the distribution enhancement applied,
and the pre-sentence report’s discussion and recommendation that the enhancement
3
be applied, Boren cannot show that the district court would have accepted the April
2006 proposed agreement.
Boren’s argument that he was prejudiced by the government’s presentation
at sentencing does not bear on the effectiveness of counsel during plea bargaining,
which was the only issue certified for appeal.
AFFIRMED.
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