United States v. San Juan Hernandez , 403 F. App'x 281 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 17 2010
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. 08-10561
Plaintiff - Appellee, D.C. No. 2:98-CR-00365-RCC-
BPV-1
v.
SAN JUAN HERNANDEZ, MEMORANDUM *
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 08-10581
Plaintiff - Appellee, D.C. No. 4:07-CR-01581-RCC-
BPV
v.
SAN JUAN HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted November 2, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ and BEA, Circuit Judges, and DUFFY, District Judge.**
San Juan Hernandez appeals the 134-month sentence imposed following his
guilty pleas to conspiring with intent to distribute and possessing with intent to
distribute 132 kilograms of marijuana; and admitting a violation of the terms of his
supervised release. Hernandez argues that his sentence must be vacated because he
received prejudicial ineffective assistance of counsel at sentencing. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo claims of ineffective assistance of counsel. United
States v. Mack, 164 F.3d 467, 471 (9th Cir. 1999). Hernandez’s ineffective
assistance claim is appropriate for direct review because the claim exclusively
relies on statements made in court by Hernandez’s attorney, which are contained in
the transcript of the sentencing hearing. See United States v. Swanson, 943 F.2d
1070, 1072 (9th Cir. 1991).
To succeed on an ineffective assistance of counsel claim, a defendant must
demonstrate that: (1) “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment;”
and (2) “the deficient performance prejudiced the defense.” Strickland v.
**
The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
2
Washington, 466 U.S. 668, 687 (1984). Because we conclude that Hernandez’s
attorney did not prejudice the defense, we need not consider whether counsel’s
performance was deficient. See Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir.
2000).
To establish prejudice, a defendant must “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. A
“reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.We first assume without deciding that Hernandez’s attorney performed
incompetently in emphasizing the medical benefits of incarceration. This error,
however, did not prejudice Hernandez. In sentencing Hernandez at the low end of
the advisory Sentencing Guidelines, the judge explicitly stated that the sentence
was designed to protect society from Hernandez in light of Hernandez’s criminal
history. The judge also stated that the likelihood that Hernandez would receive
necessary medical treatment in prison was not a dispositive factor for determining
his sentence. Given Hernandez’s extensive criminal record, he has not
demonstrated a reasonable probability that, but for counsel’s statements about the
3
benefits of incarceration, the result of the sentencing proceeding would have been
different.
AFFIRMED.
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