United States v. Zavala-Cervantez

FILED NOT FOR PUBLICATION JAN 11 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 08-30041 Plaintiff - Appellee, D.C. No. CR-06-00016-RHW v. MEMORANDUM * SERGIO ZAVALA-CERVANTEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding Submitted December 15, 2009 ** Before: GOODWIN, WALLACE, and FISHER, Circuit Judges. Sergio Zavala-Cervantez appeals from the 143-month sentence imposed following his guilty-plea conviction for distribution of methamphetamine, in * 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). NC/Research violation of 21 U.S.C. § 841(a)(1), (b). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Zavala-Cervantez contends that he received ineffective assistance of counsel at sentencing because his trial counsel failed to advocate for a 90-month sentence, despite having negotiated the right to argue for such a sentence in his plea agreement. We will not address this claim on direct appeal because it is not one of “the unusual cases[ ] (1) where the record on appeal is sufficiently developed to permit determination of the issue, or (2) where the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel.” United States v. Jeronimo, 398 F.3d 1149, 1155-56 (9th Cir. 2005); see also United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). AFFIRMED. NC/Research 2 08-30041