Opinion
No. 12-35979
02-26-2015
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES NOLON BUSH, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. Nos. 3:11-cv-06060-RBL 3:06-cr-05504-RBL-1 MEMORANDUM Appeal from the United States District Court for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted February 3, 2015 Seattle Washington Before: FISHER, BEA, and MURGUIA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Charles Nolon Bush appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We review de novo, and we affirm. United States v. Daniels, 195 F.3d 501, 502 (9th Cir. 1999), aff'd, 532 U.S. 374 (2001).
Bush claims that his counsel rendered ineffective assistance at sentencing when she failed to object to the Presentence Report ("PSR"). The PSR relied on statutory maximum sentences that had increased since the time of the offense conduct, in violation of the Ex Post Facto clause. To prevail, Bush must show (1) that "counsel's representation fell below an objective standard of reasonableness" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Porter v. McCollum, 558 U.S. 30, 38 (2009) (quoting Strickland v. Washington, 446 U.S. 668, 688, 694 (1986) (internal quotation marks omitted)).
Bush also claims IAC because counsel did not object to the PSR's use of the wrong Sentencing Guidelines Manual on some of the counts, in violation of the ex post facto clause. The question whether counsel was ineffective for failing to object to the PSR on grounds that use of the Guidelines Manual violated the ex post facto clause was not certified, and we decline to expand the certificate of appealability.
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Bush cannot show a reasonable probability that, but for counsel's failure to object to the PSR, the result of the proceeding would have been different. At sentencing, the district court stated the intention to sentence Bush to 30 years' imprisonment, and to allocate the time served among Bush's 27 counts of conviction. Then, in its order denying Bush's § 2255 motion, the district court found that "any objection would have been futile, as the Court would have simply reapportioned the sentence. Thus, Bush was not prejudiced as a result of [counsel]'s failure to object." A district court judge considering a sentence that he imposed may make findings as to his prior intention, and this court "must take such statements at face value." United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir. 1985). Therefore, regardless whether counsel rendered deficient performance through her failure to object to the use of inapplicable statutory maximums, Bush has not shown prejudice; i.e., a reasonable probability that his counsel's failure to object affected the result of the proceeding. AFFIRMED.