NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 06 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 14-55555
Plaintiff - Appellee, D.C. Nos. 3:13-cv-00453-BTM 3:09-cr-00365-BTM-1 v.
TRAVIS CHELBERG, aka Whisper, MEMORANDUM* Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding
Submitted April 6, 2016** Pasadena, California
Before: TASHIMA, SILVERMAN, and GRABER, Circuit Judges.
Defendant-Appellant Travis Chelberg filed a motion for post-conviction
relief in the district court under 28 U.S.C. § 2255, claiming ineffective assistance
of counsel. Chelberg argued that his trial attorney’s advice – to admit in his plea
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). agreement that he qualified as a career offender under the Sentencing Guidelines –
was constitutionally inadequate. The district court denied the motion. We have
jurisdiction under 28 U.S.C. §§ 2253(a) and 2255(d), and we affirm.
I.
In 2009, Chelberg was charged with: (1) being a felon in possession of
firearms in violation of 18 U.S.C. §§ 922(g), 924(a)(1); and (2) conspiracy to
distribute methamphetamine in violation of 21 U.S.C. §§ 841, 846. While in
custody on these charges, Chelberg attacked a fellow prisoner. Based on this
incident, a superseding information was filed, charging Chelberg with assault with
intent to commit a felony (witness tampering), in violation of 18 U.S.C. §§ 7,
113(a)(2). Taken together, the foregoing charges would have subjected Chelberg
to significant prison time. Chelberg pleaded guilty to the felon in possession and
assault charges. In exchange, the government agreed to dismiss the conspiracy
charge, which carried the heaviest potential sentence.
The plea agreement also stated that Chelberg qualified for a career offender
enhancement under U.S.S.G. § 4B1.1. At the sentencing hearing Chelberg himself,
separate from his attorney, raised questions about whether his predicate offenses
properly qualified for application of the career offender enhancement. The
sentencing judge found Chelberg’s concerns to be without merit. The judge
-2- imposed two consecutive 14-year sentences, as jointly recommended by the
parties.
In February 2013, Chelberg filed a motion for post-conviction relief under
28 U.S.C. § 2255. As he did at the sentencing hearing, Chelberg argued that one of
his predicate offenses could not properly be counted when applying the career
offender enhancement. Were the court unable to count the predicate offense,
Chelberg argues that he would not qualify for the enhancement. Thus, Chelberg
believes that the attorney who negotiated his plea agreement and represented him
at the sentencing hearing provided ineffective assistance of counsel by advising
Chelberg to admit career offender status. The district court denied the § 2255
motion and granted a Certificate of Appealability (“COA”) as to that issue.
II.
To prove ineffective assistance of counsel when a habeas petitioner has
pleaded guilty, a defendant must show that: (1) “counsel’s representation fell
below an objective standard of reasonableness,” Strickland v. Washington, 466
U.S. 668, 688 (1984); and (2) “there is a reasonable probability that, but for
counsel’s errors, [the defendant] would not have pleaded guilty and would have
insisted on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Here,
-3- Chelberg’s attorney’s representation that Chelberg qualified for the career offender
enhancement did not fall below an objective standard of reasonableness.1
To qualify for a career offender enhancement, a defendant must be an adult
charged with “a felony that is either a crime of violence or a controlled substance
offense” and have “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The Guidelines
define “two prior felony convictions” as including two felony convictions that “are
counted separately” under U.S.S.G. § 4A1.1(a), (b), or (c). Id. § 4B1.2(c). Prior
offenses are counted separately if they “were imposed for offenses that were
separated by an intervening arrest.” Id. § 4A1.2(a)(2).
The district court held that Chelberg qualified for the enhancement based on
two prior felony convictions. First, in 1996, Chelberg was convicted of assault
with a firearm, in violation of California Penal Code § 245(a)(2). Second, in 1999,
1 We need not reach the second prong of the Strickland analysis. We note, however, that Chelberg received the plea bargain he requested.
-4- Chelberg was convicted of possession of a controlled substance for sale, in
violation of California Health and Safety Code § 11378.2
Chelberg argues that his 1999 possession conviction does not qualify as a
predicate offense, because the government did not present evidence that it was
separated from the 1999 transportation conviction by an intervening arrest.3
However, the PSR stated that the 1999 convictions were separated by an
intervening arrest. Chelberg never objected to or otherwise questioned the
accuracy of the PSR, although he was given the opportunity to do so at his
sentencing hearing, nor did he adduce any evidence refuting this point. It was thus
objectively reasonable for the attorney to rely on the uncontested facts as stated in
the PSR when advising Chelberg to admit career offender status in his plea. See
2 On the same day that Chelberg was sentenced on the possession charge, he was sentenced on a separate charge of transporting a controlled substance, in violation of Cal. Health & Safety Code § 11379(a). The transportation conviction did not clearly qualify as a prior controlled substance conviction, and the court did not rely on it in applying the career offender enhancement. The Pre-Sentence Investigation Report (“PSR”) indicated that Chelberg was arrested on the transportation charge about four months after his arrest on the possession charge. 3 Chelberg’s argument rests on the premise that because these two convictions were not separated by an intervening arrest, under the Guidelines, they should be treated as a single offense, and because transportation does not qualify as a controlled substance offense, his 1999 conviction is not a qualifying career offender offense.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 06 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 14-55555
Plaintiff - Appellee, D.C. Nos. 3:13-cv-00453-BTM 3:09-cr-00365-BTM-1 v.
TRAVIS CHELBERG, aka Whisper, MEMORANDUM* Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding
Submitted April 6, 2016** Pasadena, California
Before: TASHIMA, SILVERMAN, and GRABER, Circuit Judges.
Defendant-Appellant Travis Chelberg filed a motion for post-conviction
relief in the district court under 28 U.S.C. § 2255, claiming ineffective assistance
of counsel. Chelberg argued that his trial attorney’s advice – to admit in his plea
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). agreement that he qualified as a career offender under the Sentencing Guidelines –
was constitutionally inadequate. The district court denied the motion. We have
jurisdiction under 28 U.S.C. §§ 2253(a) and 2255(d), and we affirm.
I.
In 2009, Chelberg was charged with: (1) being a felon in possession of
firearms in violation of 18 U.S.C. §§ 922(g), 924(a)(1); and (2) conspiracy to
distribute methamphetamine in violation of 21 U.S.C. §§ 841, 846. While in
custody on these charges, Chelberg attacked a fellow prisoner. Based on this
incident, a superseding information was filed, charging Chelberg with assault with
intent to commit a felony (witness tampering), in violation of 18 U.S.C. §§ 7,
113(a)(2). Taken together, the foregoing charges would have subjected Chelberg
to significant prison time. Chelberg pleaded guilty to the felon in possession and
assault charges. In exchange, the government agreed to dismiss the conspiracy
charge, which carried the heaviest potential sentence.
The plea agreement also stated that Chelberg qualified for a career offender
enhancement under U.S.S.G. § 4B1.1. At the sentencing hearing Chelberg himself,
separate from his attorney, raised questions about whether his predicate offenses
properly qualified for application of the career offender enhancement. The
sentencing judge found Chelberg’s concerns to be without merit. The judge
-2- imposed two consecutive 14-year sentences, as jointly recommended by the
parties.
In February 2013, Chelberg filed a motion for post-conviction relief under
28 U.S.C. § 2255. As he did at the sentencing hearing, Chelberg argued that one of
his predicate offenses could not properly be counted when applying the career
offender enhancement. Were the court unable to count the predicate offense,
Chelberg argues that he would not qualify for the enhancement. Thus, Chelberg
believes that the attorney who negotiated his plea agreement and represented him
at the sentencing hearing provided ineffective assistance of counsel by advising
Chelberg to admit career offender status. The district court denied the § 2255
motion and granted a Certificate of Appealability (“COA”) as to that issue.
II.
To prove ineffective assistance of counsel when a habeas petitioner has
pleaded guilty, a defendant must show that: (1) “counsel’s representation fell
below an objective standard of reasonableness,” Strickland v. Washington, 466
U.S. 668, 688 (1984); and (2) “there is a reasonable probability that, but for
counsel’s errors, [the defendant] would not have pleaded guilty and would have
insisted on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Here,
-3- Chelberg’s attorney’s representation that Chelberg qualified for the career offender
enhancement did not fall below an objective standard of reasonableness.1
To qualify for a career offender enhancement, a defendant must be an adult
charged with “a felony that is either a crime of violence or a controlled substance
offense” and have “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The Guidelines
define “two prior felony convictions” as including two felony convictions that “are
counted separately” under U.S.S.G. § 4A1.1(a), (b), or (c). Id. § 4B1.2(c). Prior
offenses are counted separately if they “were imposed for offenses that were
separated by an intervening arrest.” Id. § 4A1.2(a)(2).
The district court held that Chelberg qualified for the enhancement based on
two prior felony convictions. First, in 1996, Chelberg was convicted of assault
with a firearm, in violation of California Penal Code § 245(a)(2). Second, in 1999,
1 We need not reach the second prong of the Strickland analysis. We note, however, that Chelberg received the plea bargain he requested.
-4- Chelberg was convicted of possession of a controlled substance for sale, in
violation of California Health and Safety Code § 11378.2
Chelberg argues that his 1999 possession conviction does not qualify as a
predicate offense, because the government did not present evidence that it was
separated from the 1999 transportation conviction by an intervening arrest.3
However, the PSR stated that the 1999 convictions were separated by an
intervening arrest. Chelberg never objected to or otherwise questioned the
accuracy of the PSR, although he was given the opportunity to do so at his
sentencing hearing, nor did he adduce any evidence refuting this point. It was thus
objectively reasonable for the attorney to rely on the uncontested facts as stated in
the PSR when advising Chelberg to admit career offender status in his plea. See
2 On the same day that Chelberg was sentenced on the possession charge, he was sentenced on a separate charge of transporting a controlled substance, in violation of Cal. Health & Safety Code § 11379(a). The transportation conviction did not clearly qualify as a prior controlled substance conviction, and the court did not rely on it in applying the career offender enhancement. The Pre-Sentence Investigation Report (“PSR”) indicated that Chelberg was arrested on the transportation charge about four months after his arrest on the possession charge. 3 Chelberg’s argument rests on the premise that because these two convictions were not separated by an intervening arrest, under the Guidelines, they should be treated as a single offense, and because transportation does not qualify as a controlled substance offense, his 1999 conviction is not a qualifying career offender offense. We need not address this issue because, as explained in the text, above, the premise of Chelberg’s argument fails.
-5- Hill, 474 U.S. at 61-62 (White, J., concurring) (noting that there was “no factual
basis for suggesting that attorney’s advice was incompetent” where there was no
evidence that the petitioner conveyed a critical fact to the attorney); United States
v. Roberts, 5 F.3d 365, 371-72 (9th Cir. 1993) (holding that counsel’s advice was
objectively reasonable where there was no evidence that the alleged inaccuracies in
the PSR actually existed).4
III.
Chelberg raises a number of other arguments on appeal that are not included
in the COA. “In federal habeas corpus proceedings, the exercise of appellate
jurisdiction is dependent entirely upon the issuance of a COA.” United States v.
W.R. Grace, 526 F.3d 499, 522 (9th Cir. 2008) (en banc) (ellipsis omitted)
(quoting Phelps v. Alameda, 366 F.3d 722, 726 (9th Cir. 2004)); see also 28 U.S.C.
§ 2253(c). We may expand the COA, see Ninth Cir. R. 22-1(e), but “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014) (quoting 28 U.S.C. §
4 It follows also that the district court did not err in relying on the unchallenged PSR. See United States v. Romero-Rendon, 220 F.3d 1159, 1161 (9th Cir. 2000) (“[A] district court may rely on an unchallenged PSR at sentencing to find . . . that the facts underlying a sentence enhancement have been established.”).
-6- 2253(c)(2)). Because Chelberg has not made such a showing, we decline to
expand the COA.
AFFIRMED.
-7-