United States v. Spresim Alimi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-35336
Plaintiff-Appellee, D.C. No.
3:16-cr-00028-TMB-1
v.
SPRESIM ALIMI, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted June 8, 2022**
Anchorage, Alaska
Before: HURWITZ, BRESS, and H. THOMAS, Circuit Judges.
Spresim Alimi appeals the denial of his motion pursuant to 28 U.S.C. § 2255to vacate his conviction and sentence. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
*
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).
1. Alimi has not established that he was prejudiced by his attorney’s
alleged failure to explain to him that the seized cash and value of the down
payment on the Dodge Viper could be converted to drug quantities for purposes of
calculating the base offense level, or that he could be subject to an enhancement
for maintaining a premises for the purpose of distributing a controlled substance.
See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (holding that “the defendant must
show that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial”). Alimi’s plea
agreement stated that it contained no agreement as to the sentence. The district
court also advised Alimi during the plea colloquy that he might receive a harsher
sentence than he anticipated. Alimi affirmed that he understood and that he still
wished to plead guilty. In view of the totality of the circumstances, Alimi has not
shown that he was prejudiced by his counsel’s performance. See Womack v. Del
Papa, 497 F.3d 998, 1003–04 (9th Cir. 2007).
Nor has Alimi established prejudice from his attorney’s failure to object to
the conversion. See Hill, 474 U.S. at 59. In his filings in the district court, Alimi
conceded that $19,646 in cash and $4,920 paid toward the Dodge Viper were
appropriately converted to drug quantities. When added to the physical oxycodone
pills seized from Alimi, these amounts alone are sufficient to produce the base
offense level of 30 that the district court applied at sentencing. There is thus no
2
reasonable probability that Alimi’s decision to plead guilty or sentence would have
been affected by the advice Alimi argues that counsel was deficient in failing to
provide, or by an objection related to the conversion of additional money that had
no further effect on the base offense level. Id.
2. We expand the certificate of appealability to encompass the
uncertified claim presented in Alimi’s briefs, 28 U.S.C. § 2253(c), but we reject
the claim on the merits. The district court correctly concluded that Alimi was not
prejudiced by his counsel’s failure to file a motion to withdraw his guilty plea
because there was no reasonable probability that such a motion would have been
granted. See Strickland v. Washington, 466 U.S. 668, 694 (1984); United States v.
Garcia, 909 F.2d 1346, 1348–49 (9th Cir. 1990).1
AFFIRMED.
1
Because we conclude that Alimi has not established prejudice, we do not address
whether his counsel performed deficiently by failing to file such a motion.
3