United States v. John McTiernan

Jan 22, 2014
13-56526
Versions:552 F. App'x 749

Rojas-Robles contends that the district court procedurally erred at sentencing by (i) using his prior illegal reentry sentence as a benchmark, (ii) failing to consider all of the 18 U.S.C. § 3553(a) sentencing factors and his mitigating arguments, (iii) failing adequately to explain the sentence imposed, and (iv) relying on clearly erroneous facts in fashioning the sentence. The record reflects that the district court used the advisory Guidelines range, rather than Rojas-Robles‘s prior sentence, as the initial benchmark. In addition, the court adequately considered Rojas-Robles‘s mitigating arguments and the section 3553(a) factors, sufficiently explained the sentence and its basis for imposing a term of supervised release, and did not choose the sentence based on clearly erroneous facts. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc).

Rojas-Robles next contends that his above-Guidelines custodial sentence and the three-year term of supervised release are substantively unreasonable. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The custodial sentence and supervised release term are substantively reasonable in light of the totality of the circumstances and the section 3553(a) sentencing factors. See id.; see also U.S.S.G. § 5D1.1 cmt. n. 5.

AFFIRMED.

Jean-Claude Andre, Assistant U.S., Dorothy C. Kim and Kevin M. Lally, Esquire, Assistant U.S., Los Angeles, CA, for Plaintiff-Appellee.

Henry E. Hockeimer, Jr., Philadelphia, PA, Alan S. Petlak, Los Angeles, CA, Jonathan S. Satinsky, Philadelphia, PA, Daniel M. Benjamin, Esquire, San Diego, CA, for Defendant-Appellant.

Before: O‘SCANNLAIN, GRABER, and NGUYEN, Circuit Judges.

MEMORANDUM**

John McTiernan appeals the district court‘s denial of relief under 28 U.S.C. § 2255. McTiernan argues that his conviction for perjury under 18 U.S.C. § 1623(c) was legally deficient under United States v. Jaramillo, 69 F.3d 388, 390-92 (9th Cir.1995). Alternatively, McTiernan maintains his prior counsel was ineffective for failing to raise Jaramillo. Reviewing the district court‘s denial of relief de novo, White v. Martel, 601 F.3d 882, 883 (9th Cir.2010) (per curiam), we affirm.

McTiernan presents his arguments based on Jaramillo as though in direct proceedings. But his challenge is collateral, and under his plea agreement, McTiernan waived “any right to bring a post-conviction collateral attack on the convictions or sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel....” McTiernan‘s waiver was unambiguously stated and knowingly and voluntarily made, and so is valid and enforceable. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993). Even without the waiver, all of McTiernan‘s claims, except for ineffective assistance of counsel, see Washington v. Lampert, 422 F.3d 864, 871 (9th Cir.2005), are procedurally defaulted because he failed to demonstrate the necessary “cause and actual prejudice,” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), or “actual innocence” of both the offenses of conviction and the charges that the government forewent in plea negotiations, id. at 624, 118 S.Ct. 1604, to excuse default.

To prevail on his ineffective assistance of counsel theory, McTiernan must show that “(1) counsel‘s representation fell below the range of competence demanded of attorneys in criminal cases, and (2) ‘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.‘” Washington, 422 F.3d at 873 (quoting Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

McTiernan has made no attempt to show why Jaramillo was never raised by counsel. Although he complains the district court speculated that strategic considerations, rather than ignorance or inadvertence, might explain the omission, ultimately it was McTiernan‘s obligation to rebut the presumption of counsel‘s competence. Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir.2008). This he did not do. There is no evidentiary support for the allegation that counsel‘s performance was deficient.

AFFIRMED.

Notes

**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.