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United States v. Gulmaro Torres-Leon , 550 F. App'x 480 ( 2013 )


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  •                            NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS                            FILED
FOR THE NINTH CIRCUIT                             DEC 20 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 12-35353
Plaintiff - Appellee,              D.C. Nos.    1:09-cv-00111-RFC
1:07-cr-00086-RFC-1
v.
GULMARO TORRES-LEON,                             MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Submitted December 4, 2013**
Seattle, Washington
Before: O’CONNOR, Associate Justice (Ret.),*** and TALLMAN and BEA,
Circuit Judges.
*
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).
***
The Honorable Sandra Day O’Connor, Associate Justice (Ret.) for the
Supreme Court of the United States, sitting by designation.
Appellant Gulmaro Torres-Leon appeals the denial of his
    28 U.S.C. § 2255
    motion to vacate, set aside, or correct his sentence for conspiracy to distribute
methamphetamine. For the following reasons, we affirm.
1. Montana trial counsel was not ineffective under Strickland v.
Washington,
    466 U.S. 668
     (1984) and Hill v. Lockhart,
    474 U.S. 52
     (1985) in
failing to pursue a Fifth Amendment double jeopardy defense. The district court
correctly found that there was not enough evidence of a single conspiracy to
support a reasonable attorney in recommending trial over a guilty plea, especially
with the risk of a longer prison sentence. Instead, the evidence showed at least two
conspiracies, occurring at different times and in different places, and involving
different persons, methods, roles, and acts. See Arnold v. United States,
    336 F.2d 347
     (9th Cir. 1964); United States v. Ziskin,
    360 F.3d 934
     (9th Cir. 2003).
2. Even if trial counsel had erred, Appellant would not meet his burden to
prove a “reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill,
    474 U.S. at 59
    .
3. The government did not violate Brady v. Maryland,
    373 U.S. 83
     (1963)
when it redacted information from investigation documents. The redacted
information did not raise a meritorious double jeopardy defense, and therefore was
not sufficiently material or exculpatory to establish a Brady claim.
2
AFFIRMED.
3