United States v. Frank Her

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2019
• Docket: 18-10439
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10439

Plaintiff-Appellee, D.C. No. 2:15-cr-00115-TLN-5

v. MEMORANDUM* FRANK HER,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted November 18, 2019**

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

Frank Her appeals from the district court’s judgment and challenges the 78-

month sentence imposed following his guilty-plea conviction for conspiracy to

commit access device fraud, in violation of 18 U.S.C § 1029(b)(2), illegal

possession of device-making equipment, in violation of 18 U.S.C § 1029(a)(4), and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). possession of stolen mail, in violation of 18 U.S.C § 1708. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

Her asserts that the first of his two appointed trial counsel provided

ineffective assistance by advising him not to accept responsibility or show remorse

for his offense prior to sentencing. Although we do not ordinarily review

ineffective assistance claims on direct appeal, the facts in this case are sufficiently

developed to permit us to reach and reject Her’s argument. See United States v.

Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011). Even accepting Her’s argument

that his first trial counsel performed deficiently by advising him not to accept

responsibility during the presentencing phase, the record shows that the district

court granted Her a downward adjustment for acceptance of responsibility at

sentencing and did not consider Her’s earlier lack of remorse in imposing the

sentence. Thus, Her cannot show that he was prejudiced by his first counsel’s

alleged errors. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (“The

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.”).

AFFIRMED.

2 18-10439