NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-55716
Plaintiff-Appellee, D.C. No. 8:14-cv-00998-JVS
v.
MEMORANDUM*
HUNG XUAN DONG,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted November 4, 2019**
Pasadena, California
Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,*** District
Judge.
Hung Xuan Dong appeals the district court’s denial of his motion pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Louis Guirola, Jr., United States District Judge for the
Southern District of Mississippi, sitting by designation.
under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.
Dong argues that his counsel was ineffective in failing to timely communicate
a three-level reduction offer by the government and incorrectly advising him to reject
the offer. At an evidentiary hearing, the district court found Dong’s counsel was
credible and Dong was not credible. The district court also found that counsel’s
performance was not deficient, and, in any event, Dong was not prejudiced by his
counsel’s performance.
This Court reviews claims of ineffective assistance of counsel de
novo. Beardslee v. Woodford, 358 F.3d 560, 569 (9th Cir. 2004). We review the
district court’s factual findings for clear error. Id.
The district court did not err in denying Dong’s motion because, even if his
counsel was ineffective, Dong suffered no prejudice. See Strickland v. Washington,
466 U.S. 668, 691 (1984) (“An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment.”). Counsel testified that Dong was not interested in
cooperating with the government or pleading guilty, and he would not take a plea
that could expose him to a sentence of ten years or more. The district court
reasonably found that testimony credible, and Dong’s contrary testimony not
credible. Dong’s previous lawyers had recommended that he plead guilty and
cooperate, but he instead insisted on pursuing dismissal of the case for government
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misconduct, an argument his previous lawyers considered frivolous. Thus, Dong
has not demonstrated that he would have accepted the plea deal but for counsel’s
alleged ineffectiveness. See Lafler v. Cooper, 566 U.S. 156, 163 (2012) (“In the
context of pleas a defendant must show the outcome of the plea process would have
been different with competent advice.”).
AFFIRMED.
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