USA V. HASSAN KANYIKE

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 27, 2022
• Docket: 21-50269
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 27 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50269

Plaintiff-Appellee, D.C. No. 2:21-cr-00081-VAP-1 v.

HASSAN KANYIKE, AKA Hassan MEMORANDUM* Shaban Kanyike,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief District Judge, Presiding

Argued and Submitted November 17, 2022 Pasadena, California

Before: TASHIMA and NGUYEN, Circuit Judges, and FITZWATER,** District Judge.

Hassan Kanyike (“Kanyike”) appeals his sentence, contending that his counsel

rendered constitutionally ineffective assistance by failing to effectively argue at

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. sentencing the reasons why he was not subject to the two-level “sophisticated means”

enhancement under U.S.S.G. § 2B1.1(b)(10)(C) and failing to challenge the two-level

enhancement under U.S.S.G. § 2B1.1(b)(17)(A) for deriving gross receipts of over $1

million from financial institutions. Although we generally do not review challenges

to the effectiveness of defense counsel on direct appeal, United States v. Singh, 979

F.3d 697, 731 (9th Cir. 2020), we will do so where the record on appeal “is

sufficiently developed to permit review and determination of the issue,” id. at 732

(quoting United States v. Steele, 733 F.3d 894, 897 (9th Cir. 2013)). Both sides, in

fact, maintain that Kanyike’s ineffective assistance claims can be decided in this direct

appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and

we affirm.

1. Kanyike’s counsel objected—both before and at sentencing—to the two-

level “sophisticated means” enhancement under U.S.S.G. § 2B1.1(b)(10)(C). What

he did not do was cite non-binding out-of-circuit precedent that Kanyike maintains

should have been cited in support of the objection. This failure to cite non-binding

authority did not fall below an objective standard of reasonableness. See Strickland

v. Washington, 466 U.S. 668, 687-88 (1984).

2. Nor was Kanyike’s counsel constitutionally ineffective for failing to contest

the two-level gross receipts enhancement under U.S.S.G. § 2B1.1(b)(17)(A). Kanyike

2 stipulated to facts in support of his plea agreement, including the fact that he derived

$1,002,550 (the total of several bank loans) in gross receipts from financial

institutions. Given this admission, his counsel’s failure to dispute that he derived

more than $1 million from financial institutions did not fall below an objective

standard of reasonableness. See Strickland, 466 U.S. at 687-88; United States v.

Morrison, 113 F.3d 1020, 1021 (9th Cir. 1997) (“Any attempt to contradict the factual

basis of a valid plea must fail.”); Baumann v. United States, 692 F.2d 565, 572 (9th

Cir. 1982) (“The failure to raise a meritless legal argument does not constitute

ineffective assistance of counsel.”).

Because the record on appeal is sufficiently developed to permit review and

determination of the issue and Kanyike has failed to demonstrate that his counsel

rendered constitutionally ineffective assistance, we affirm the judgment of the district

court.

AFFIRMED.