United States v. Charles Bush , 594 F. App'x 389 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-35979
Plaintiff - Appellee, D.C. Nos. 3:11-cv-06060-RBL
3:06-cr-05504-RBL-1
v.
CHARLES NOLON BUSH, MEMORANDUM*
Defendant - Appellant.
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.
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
*
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).
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.1 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 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
1
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.
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.