FILED
NOT FOR PUBLICATION JUL 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-35472
Plaintiff - Appellee, D.C. Nos. 6:06-CV-06164-HO
6:03-CR-60082-HO
v.
ISRAEL ARREOLA-CONTRERAS, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted June 11, 2010 **
Portland, Oregon
Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, District
Judge.***
*
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).
***
The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
Defendant Arreola-Contreras, a federal prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel
during plea bargaining. The defendant contends that his counsel was ineffective by
erroneously advising him that he would be sentenced up to 365 months as a “career
offender” under the United States Sentencing Guidelines. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291, 2253, and 2255, and we affirm.
“[T]he two-part Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58
(1985); see Strickland v. Washington, 466 U.S. 668, 687-95 (1984). First, a
defendant must show that, in light of all the circumstances, counsel’s performance
fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88.
Second, the defendant must affirmatively prove prejudice. Id. at 693. Because the
defendant has not made the first showing, we need not address the second. Id. at
700.
At the time the defendant entered his plea, it was reasonable for defense
counsel to advise that the defendant’s prior DUI-related assault conviction, when
combined with his prior cocaine conviction, qualified him as a career offender with
a potential 365-month sentence. The initial pre-sentencing report issued by the
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United States Probation Office concluded as much and recommended a sentence of
292-365 months, as defense counsel predicted.
The defendant does not contend that his counsel’s sentencing advice was
erroneous at the time he plead guilty; he contends that the advice became
inaccurate based on new Supreme Court precedent issued two months later. We
reject this contention in light of the circumstances of this case. As the district court
concluded, “failure of counsel to provide advice based on future precedent does not
fall below an objective standard of reasonableness.” See Strickland, 466 U.S. at
689 (“A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from
counsel's perspective at the time.”).
The defendant’s contention that his counsel should have anticipated future
precedent based on this court’s decision in United States v. Trinidad-Aquino, 259
F.3d 1140 (9th Cir. 2001) lacks merit. Trinidad reiterated that “recklessness is a
sufficient mens rea for a ‘crime of violence,’” 259 F.3d at 1146 (internal citation
omitted), and the defendant’s prior DUI conviction under Oregon law required
recklessness. Or. Rev. Stat. § 163.165; State v. Hill, 298 Or. 270 (Or. 1984).
AFFIRMED.
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