United States v. Raul Anchondo , 588 F. App'x 598 ( 2014 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                DEC 15 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 13-30344
    Plaintiff - Appellee,              D.C. No. 2:12-cr-00062-RSL-19
    v.
    MEMORANDUM*
    RAUL ANCHONDO, AKA Pecce,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Western District of Washington
    Robert S. Lasnik, District Judge, Presiding
    Submitted December 11, 2014**
    Seattle, Washington
    Before: McKEOWN, TALLMAN, and OWENS, Circuit Judges.
    Raul Anchondo appeals the district court’s denial of his Motion to Enforce a
    Plea Agreement and ineffective assistance of counsel claims. Anchondo argues
    that his trial counsel, David Hammerstad, did not communicate 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 concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    agreement’s April 25th deadline, and asks this court to enforce the expired plea
    agreement and find Hammerstad constitutionally ineffective based on his failure to
    communicate the deadline.
    First, the district court made a factual finding that Hammerstad did
    communicate the plea agreement deadline to Anchondo, and this finding is not
    clearly erroneous. United States v. Overton, 
    573 F.3d 679
    , 688 (9th Cir. 2009).
    Despite the lack of live testimony, there was substantial documentary evidence
    from which the district court could make a factual finding. Watts v. United States,
    
    841 F.2d 275
    , 277 (9th Cir. 1988); Williams v. Woodford, 
    306 F.3d 665
    , 688–89
    (9th Cir. 2002) (even when credibility is at issue, if the evidence in the record fully
    presents relevant facts and live testimony would not alter the court’s view of the
    record, no evidentiary hearing is required). The written record included affidavits
    by Anchondo, Hammerstad, the prosecutor who negotiated the plea agreement, and
    Anchondo’s newly appointed counsel. The record also included a multitude of
    emails exchanged between Hammerstad and the negotiating prosecutor during the
    relevant period that explicitly state the plea agreement’s deadline. Even
    Hammerstad’s written notes indicated he communicated that “time was of the
    essence” to Anchondo.
    2
    Based on this credibility determination that Anchondo’s trial attorney did
    communicate the plea agreement’s deadline, the court properly concluded that
    Anchondo’s untimely acceptance did not create an enforceable plea agreement.
    United States v. Trapp, 
    257 F.3d 1053
    , 1056 (9th Cir. 2001) (noting that plea
    agreements are evaluated under contract law); Restatement (Second) of Contracts,
    §§ 36, 41(1) (1981).
    Second, Anchondo failed to show deficient performance and/or prejudice in
    his ineffective assistance of counsel claims. Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984). Although, “as a general rule, we do not review challenges to the
    effectiveness of defense counsel on direct appeal,” here, “the record on appeal is
    sufficiently developed to permit determination of the issue.” United States v.
    Rahman, 
    642 F.3d 1257
    , 1259–60 (9th Cir. 2011) (citing United States v.
    Jeronimo, 
    398 F.3d 1149
    , 1155–56 (9th Cir. 2005)).
    Anchondo asserts deficient performance because Hammerstad (1) did not
    specifically tell Anchondo that the government’s offer would lapse on April 25th,
    (2) did not effectively communicate the contractual consequences of making a
    counteroffer, and (3) did not monitor his email Friday evening, April 26th, and
    convey Anchondo’s acceptance to the prosecutor soon after Anchondo’s 7:19 p.m.
    email.
    3
    Given the district court’s factual finding that Hammerstad did communicate
    the April 25th deadline, no deficient performance can be established on this basis.
    Next, assuming Hammerstad did not explain to Anchondo that making a
    counteroffer would effectively void the prosecutor’s initial offer, Anchondo cannot
    show prejudice where the prosecutor rejected Anchondo’s counteroffer but then
    put the original plea back on the table. Finally, even if Hammerstad provided
    ineffective assistance by not monitoring his email the evening of Friday, April
    26th, Anchondo cannot show that “but for counsel’s unprofessional errors, the
    result of the proceeding would have been different.” Strickland, 
    466 U.S. at 694
    .
    The prosecutor expressly stated that had Hammerstad called him at 7 p.m. Friday
    evening, he would have rejected Anchondo’s acceptance as untimely.
    AFFIRMED.
    4