United States v. Michael Ohayon , 617 F. App'x 830 ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 2 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10215
Plaintiff - Appellee, D.C. No. 3:10-cr-00105-CRB-1
v.
MEMORANDUM *
MICHAEL OHAYON,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 14-10221
Plaintiff - Appellant, D.C. No. 3:10-cr-00105-CRB-1
v.
MICHAEL OHAYON,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Submitted September 16, 2015**
*
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
San Francisco, California
Before: CHRISTEN and FRIEDLAND, Circuit Judges and LEMELLE,*** District
Judge.
Michael Ohayon pled guilty to one count of bank fraud, 18 U.S.C. § 1344,
one count of conspiracy to commit bank fraud, 18 U.S.C. § 1349, and one count of
money laundering, 18 U.S.C. § 1957. Ohayon initially received a 60-month
sentence. Ohayon then filed a § 2255 motion, arguing that he received ineffective
assistance of counsel during the sentencing proceedings. The district court granted
the motion and reduced Ohayon’s sentence to 38 months. Ohayon appeals this
sentence, and the Government cross-appeals, challenging the district court’s grant
of the § 2255 motion.
Ohayon’s counsel’s performance at the initial sentencing was not
unconstitutionally deficient. The attorney’s failure to raise the pending Guidelines
amendment did not render his representation objectively unreasonable. Strickland
v. Washington, 466 U.S. 668, 687-88 (1984) (deficient performance must fall
below “an objective standard of reasonableness”); United States v. McMullen, 98
F.3d 1155, 1158 (9th Cir. 1996) (adopting the Government’s position that the “fact
that defendant’s lawyer was not innovative enough to raise this issue does not
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
make him constitutionally defective”). Although the district court articulated
sound reasons for the sentence imposed on resentencing, that sentence was
imposed as a remedy for the § 2255 claim, which should not have been granted at
all.
Ohayon’s argument that his defense counsel during the second sentencing
was himself constitutionally ineffective was raised for the first time in Ohayon’s
reply brief and is therefore waived. United States v. Jefferson, 791 F.3d 1013,
1019 n.7 (9th Cir. 2015). The other issues Ohayon raises on appeal were waived
as part of his plea agreement and are thus rejected. 1
The district court’s grant of Ohayon’s § 2255 motion is REVERSED.
1
Ohayon’s motion to withdraw arguments is denied as moot. Further, Ohayon’s
Supplemental Excerpts of Record include a letter that was not part of the district
court record, in violation of Federal Rule of Appellate Procedure 10(a)(1). We
therefore strike that material from Ohayon’s Supplemental Excerpts of Record.
Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1128 (9th Cir. 2009).