NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS RODRIGUEZ, AKA Joel No. 17-56680
Castillo, AKA Shorty,
D.C. Nos. 2:16-cv-05987-MWF
Petitioner-Appellant, 2:13-cr-00542-MWF-4
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted October 15, 2019
Pasadena, California
Before: WARDLAW and COLLINS, Circuit Judges, and SETTLE,** District
Judge.
Juan Carlos Rodriguez (“Rodriguez”) appeals the district court’s denial of
his 28 U.S.C. § 2255 motion to vacate his 2015 conviction and sentence for
conspiracy to possess with intent to distribute and to distribute at least 50 grams of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. We have
jurisdiction under 28 U.S.C. § 2253. The district court did not err when it
summarily denied Rodriguez’s motion. Therefore, we affirm.1
The district court did not err when it denied Rodriguez’s motion for lack of
prejudice. Womack v. Del Papa, 497 F.3d 998, 1001 (9th Cir. 2007) (reviewing
the district court’s denial of a section 2255 motion de novo). Rodriguez contends
that his guilty plea was not voluntary because his lawyer misrepresented that his
federal sentence would run entirely concurrently with a state sentence he was
already serving based on the same criminal acts. “[A] defendant who pleads guilty
upon the advice of counsel may only attack the voluntary and intelligent character
of the guilty plea by showing that the advice he received from counsel” constituted
ineffective assistance—that is, that the advice constituted deficient performance
and prejudiced the defense. Hill v. Lockhart, 474 U.S. 52, 56 (1985); see also id.
at 58–59.
Even if Rodriguez’s attorney did represent that the two sentences would run
entirely concurrently, Rodriguez fails to demonstrate that he was prejudiced by this
advice. Womack, 497 F.3d at 1003 (citing Doganiere v. United States, 914 F.2d
165, 168 (9th Cir. 1990) (holding prejudice not established when the plea
1
In addition, the government’s unopposed motion to supplement the record
on appeal, Docket No. 23, is granted.
2 17-56680
agreement and plea colloquy “alerted [the defendant] to the potential consequences
of his guilty plea”)). The district judge advised Rodriguez during the Rule 11 plea
colloquy that he was not guaranteed a concurrent sentence and that it was “up in
the air how any federal sentence might run” with the state sentence. Accordingly,
he fails to demonstrate the requisite prejudice.
Rodriguez’s argument that his plea agreement was vague and misleading
because it failed to specify a date when the “undischarged portion” of the sentence
would begin to run does not change this result. A federal sentence begins to run no
earlier than the date it is imposed. See 18 U.S.C. § 3585(a). In this case, the
district court imposed Rodriguez’s sentence on August 6, 2015, which became the
operative date for the Bureau of Prisons (“BOP”) to determine the remaining, or
undischarged, portion of his state sentence.2 Moreover, the district judge informed
Rodriguez at sentencing that the BOP would determine the credit he would receive
for the state sentence, and Rodriguez did not object or seek to withdraw his plea.
For these same reasons, the district court did not abuse its discretion in
2
Rodriguez’s attorney did successfully move to continue the sentencing
hearing five times, which had the practical effect of increasing the length of his
overall incarceration by delaying the date on which his federal sentence would
begin to run concurrently with the state sentence he was then serving. However, in
his motion Rodriguez did not allege ineffective assistance based on his attorney’s
decisions to continue the hearing, and the record reveals that the attorney
reasonably requested most of the continuances to determine Rodriguez’s eligibility
for statutory sentencing relief.
3 17-56680
denying Rodriguez’s petition without an evidentiary hearing; the record
conclusively shows that Rodriguez cannot establish prejudice. Doganiere, 914
F.2d at 168.
AFFIRMED.
4 17-56680