United States v. Mady Chan ( 2018 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    MAY 03 2018
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No. 16-15503
    Plaintiff-Appellee,               D.C. Nos.    2:15-cv-01367-WBS
    2:96-cr-00350-WBS-5
    v.
    MADY CHAN, AKA Maddy,                           MEMORANDUM*
    AKA Mandy, AKA Manny,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of California
    William B. Shubb, District Judge, Presiding
    Argued and Submitted April 9, 2018
    San Francisco, California
    Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
    Mady Chan appeals the district court’s denial of his Motion to Vacate, Set
    Aside, or Correct a Sentence by a Person in Federal Custody pursuant to 
    28 U.S.C. § 2255
    . We affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Gary S. Katzmann, Judge for the United States Court
    of International Trade, sitting by designation.
    A waiver of a defendant’s right to appeal or collaterally attack a conviction
    does not preclude a subsequent claim of ineffective assistance of counsel in which
    the defendant calls into question his entry into the agreement that contained the
    waiver. Washington v. Lampert, 
    422 F.3d 864
    , 869-70 (9th Cir. 2005). Because
    Chan argues that he involuntarily and unknowingly entered into the plea agreement
    that contained the waiver as a result of ineffective assistance of counsel, we have
    jurisdiction to hear Chan’s claim.
    Chan’s argument fails on the merits, however, because he did not prove that
    his representation “fell below an objective standard of reasonableness.” Strickland
    v. Washington, 
    466 U.S. 668
    , 688-96 (1984).
    From the outset, as the district court found, Chan expressed primary concern
    for other family members who had also been charged. Specifically, Chan wanted
    to obtain dismissal of the charges against other family members and also wanted to
    preserve a home for his father. Because he was already serving a long sentence for
    a conviction in the Northern District, avoiding this conviction was of much less
    significance to Chan than it might have been in other circumstances. The plea
    agreement represented the most definite means of dismissing the charges against
    Chan’s family members and preserving the home. While a motion to dismiss for a
    Speedy Trial Act violation could have been pursued, the district court concluded
    that “there was nevertheless a risk that the court would deny the motion and
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    petitioner would lose the ability to protect his family members.” The district
    court’s findings were not clearly erroneous.
    A defendant’s representation is not “constitutionally defective” because he
    “lacked a crystal ball” that would “give an accurate prediction of the outcome of
    [the] case.” Turner v. Calderon, 
    281 F.3d 851
    , 881 (9th Cir. 2002). That Warriner
    did not state that the outcome of a potential dismissal motion was absolutely
    certain did not render his representation of Chan ineffective. Counsel was only
    under an obligation to provide Chan with the ability to “make a reasonably
    informed decision whether to accept a plea offer.” 
    Id. at 880
    . Warriner effectively
    informed Chan of the effect of the plea agreement and, in doing so, provided the
    necessary information to make an informed decision to accept the plea.
    We decline to broaden the scope of the certificate of appealability to include
    Chan’s uncertified claims. The failure to file a motion to dismiss at an earlier point
    in time did not present a more serious ineffectiveness claim than the claim
    discussed above. Chan was incarcerated anyway, and it was not unreasonable to let
    sleeping dogs lie. As for the district court’s decision not to hold an evidentiary
    hearing, Chan did not make a showing that there were additional facts that needed
    to be developed.
    AFFIRMED.
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