FILED
NOT FOR PUBLICATION NOV 29 2011
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. 10-30156
Plaintiff - Appellee, D.C. No. 6:09-cr-00014-DWM
v.
MEMORANDUM *
RAYMOND BELL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Raymond Bell appeals the 150-month sentence imposed following his
guilty-plea conviction for conspiracy to distribute methamphetamine, in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(B). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
*
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).
Bell first contends that the district court plainly erred in sentencing him as a
career offender because his prior first-degree burglary conviction under section
459 of the California Penal Code is not a crime of violence. Bell’s contention is
foreclosed by United States v. Park, 649 F.3d 1175, 1178 (9th Cir. 2011)
(“Applying the categorical test here, we hold that California first-degree burglary is
a crime of violence pursuant to the residual clause of [U.S.S.G. §] 4B1.2(a).”).
Bell next contends that his counsel provided ineffective assistance by failing
to alert the district court to the pendency of United States v. Aguila-Montes de Oca,
655 F.3d 915 (9th Cir. 2011) (en banc), and by failing to object to the district
court’s application of the career offender Guideline. Although ineffective
assistance of counsel claims are generally not considered on direct appeal, the
record here is sufficiently developed to permit consideration of this claim. See
United States v. Alferahin, 433 F.3d 1148, 1160 n.6 (9th Cir. 2006).
Bell’s claim fails. Neither counsel’s speculation regarding the outcome of
Aguila-Montes de Oca, nor an objection to the district court’s decision to sentence
Bell as a career offender, would have affected the outcome in the district court or
on appeal. There was no prejudice. See Strickland v. Washington, 466 U.S. 668,
694 (1984).
AFFIRMED.
2 10-30156