FILED
NOT FOR PUBLICATION OCT 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-57001
Plaintiff - Appellee, D.C. Nos. 2:10-cv-02588-CAS
2:07-cr-0847-CAS-1
v.
PEDRO PENA, AKA Dizzy, AKA Seal, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted October 7, 2013**
Pasadena, California
Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.
*
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).
Pedro Pena appeals the district court’s denial of his 28 U.S.C. § 2255 motion
to vacate his 130-month sentence for distribution of methamphetamine. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1
Pena argues that his trial and appellate counsel were ineffective when they
failed to object to the base offense level used at sentencing. He argues that counsel
should have objected because that level was derived, in part, from a dismissed
count. We review ineffective assistance of counsel claims and the denial of a 28
U.S.C. § 2255 motion de novo. United States v. Manzo, 675 F.3d 1204, 1209 (9th
Cir. 2012). To demonstrate ineffective assistance of counsel, Pena must show that
counsel’s representation fell below an objective standard of reasonableness and
that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687–88
(1984).
Pena’s trial counsel’s failure to object to the base offense level and his
appellate counsel’s failure to raise the issue on appeal was not unreasonable
because any objection would have been without merit. See Shah v. United States,
878 F.2d 1156, 1162 (9th Cir. 1989) (“The failure to raise a meritless legal
argument does not constitute ineffective assistance of counsel.”) (quoting
1
We decline to address the issues Pena raises that were not included in the
Certificate of Appealability, as they were not present in the original § 2255 petition
and may not be raised for the first time here. See United States v. Keller, 902 F.2d
1391, 1395 (9th Cir. 1990) (citing Egger v. United States, 509 F.2d 745, 749 (9th
Cir.), cert denied, 423 U.S. 842 (1975)).
Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982)). Before sentencing,
Pena signed a plea agreement in which he stipulated to a base offense level of 32
—a level that reflected, in part, the drugs he was charged with distributing in the
dismissed count. At sentencing, the district court advised Pena of the sentencing
range and adopted 32 as the base offense level in accordance with the plea
agreement. Because Pena had agreed to this base offense level and sentences such
as Pena’s may be based on “relevant conduct,” see U.S.S.G. § 1B1.3(a)(2), there
was no basis for trial counsel to object and no basis for appellate counsel to raise
the issue on appeal.
AFFIRMED.