FILED
NOT FOR PUBLICATION DEC 19 2012
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. 09-36095
Plaintiff - Appellee, D.C. Nos. 1:09-cv-00006-RFC
1:07-cr-00022-RFC-1
v.
JOSE ANGEL TORRES-GUARDADO,
MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted December 5, 2012
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.**
Federal prisoner Jose Angel Torres-Guardado appeals the district court’s
denial of his 28 U.S.C. § 2255 motion. At issue is whether appellate counsel
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
rendered ineffective assistance by failing to appeal the inadequate factual basis for
Torres-Guardado’s Rule 11 guilty plea to the charge of conspiracy to distribute
methamphetamine. We have jurisdiction under 28 U.S.C. § 2255, and we affirm.
Analyzing Torres-Guardado’s ineffective assistance claim under Strickland
v. Washington, 466 U.S. 668 (1984), we agree with the district court’s decision that
Torres-Guardado has failed to demonstrate that his Sixth Amendment right to
counsel was violated. Specifically, Torres-Guardado has not established that he
suffered prejudice as a result of his counsel’s failure to appeal the inadequate
factual basis for his guilty plea.1 Documents produced by the government in
discovery show that Torres-Guardado purchased drugs from a co-conspirator in
Denver. Torres-Guardado also admitted to the magistrate judge that he did not
manufacture the drugs himself. Based on the entire record, Torres-Guardado has
failed to show a reasonable probability that but for the alleged Rule 11 error he
would not have entered the guilty plea. See United States v. Dominguez Benitez,
1
An ineffective assistance of counsel claim is analyzed under the two-part
test developed in Strickland. The “defendant must show that counsel’s
performance was deficient” and “the defendant must show that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. The court may
address these prongs in either order and it need not analyze both parts if the
defendant cannot establish either prong. Id. at 697.
2
542 U.S. 74, 83 (2004); United States v. Monzon, 429 F.3d 1268, 1271-72 (9th Cir.
2005).
AFFIRMED.
3