United States v. Joshua Kistler

FILED
NOT FOR PUBLICATION NOV 23 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-35968

Plaintiff - Appellee, D.C. Nos. 3:08-cv-70029-HA
3:05-cr-00217-HA
v.

JOSHUA KISTLER, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding

Submitted November 3, 2010**
Portland, Oregon

Before: ALDISERT, W. FLETCHER and FISHER, 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).
***
The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
Joshua Kistler appeals from the district court’s denial of his motion to

vacate, set aside and correct sentence under 28 U.S.C. § 2255, claiming ineffective

assistance of counsel. We affirm.

Kistler contends he received ineffective assistance of counsel because trial

counsel did not make adequate efforts to obtain the documents underlying the

victim’s claim that Kistler’s conduct caused her psychological injuries. But trial

counsel did make such efforts, by sending letters demanding that she be able to

review the relevant documents and by voicing concerns that the victim’s

psychological injuries were unrelated to Kistler’s conduct. Trial counsel could

have reasonably concluded that her concerns regarding the victim’s claimed

psychological harms were noted in the presentence report and would be resolved at

a later restitution hearing. Thus Kistler has not demonstrated that trial counsel’s

performance fell short of prevailing professional norms or was unreasonable under

the circumstances. See Strickland v. Washington, 466 U.S. 668, 688 (1984).

Kistler also argues that counsel’s allegedly deficient performance caused

prejudice at sentencing. He contends that because mandatory restitution was not

imposed, the statements offered by the victim’s mother at sentencing must have

been untrue. Kistler argues that competent counsel would have obtained and

presented documentation undermining these statements, thereby preventing the

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district court from taking them into account at sentencing. But the district court

was made aware, through the PSR, that the connection between Kistler’s conduct

and the victim’s claimed psychological injuries was not fully documented. Thus

the district court was able to give appropriate weight to the presentations made at

sentencing. Moreover, in the district court’s order denying defendant’s motion for

relief under 28 U.S.C. § 2255, the court accurately described and evaluated the

sentencing proceeding and confirmed that the sentence was based on the offense

conduct, not the presentations made at sentencing. Thus Kistler has not established

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694.

Because Kistler has neither demonstrated that trial counsel’s performance

was deficient nor that the alleged deficiency caused prejudice at sentencing, we

reject his ineffective assistance of counsel claim. Accordingly, we affirm the

district court’s denial of relief under 28 U.S.C. § 2255.

AFFIRMED.