United States v. Elder

131 F. App'x 555

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2005
• Docket: No. 04-16439; D.C. Nos. CV-03-01207-PJH, CR-95-00413-PJH
• Status: Published

Opinion

MEMORANDUM

**

Marcellus Aaron Elder appeals pro se the district court’s order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Elder contends that he received ineffective assistance of counsel because his counsel failed to inform him that the Sentencing Guidelines may allow for a downward departure for acceptance of responsibility if he pleaded guilty instead of proceeding to trial. For Elder to succeed, he must demonstrate that his attorney’s representation was deficient to such a degree as to prejudice his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Elder cannot show a reasonable probability that, had he been aware that the Sentencing Guidelines allow for downward departures for acceptance of responsibility, the result of the proceedings would have been different. See id. at 693-94; Franklin v. Johnson, 290 F.3d 1223, 1237 (9th Cir.2002).

Even assuming deficient conduct, defense counsel’s actions did not prejudice the results of Elder’s proceeding because a guilty plea is not necessarily sufficient by itself to warrant an acceptance of responsibility adjustment. See U.S.S.G. § 3E1.1, application note 3 (“A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.”). Accordingly, the district court properly denied his § 2255.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.