United States v. Chris Nero ( 2013 )

FILED
NOT FOR PUBLICATION FEB 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10532
Plaintiff - Appellee, D.C. No. 4:08-cr-00744-CKJ-JCG-
1
v.
CHRIS NERO, MEMORANDUM *
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10008
Plaintiff - Appellee, D.C. No. 4:08-cr-00744-CKJ-JCG-
1
v.
CHRIS NERO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted February 15, 2013 **
San Francisco, California
Before: HAWKINS and M. SMITH, Circuit Judges, and CARR, Senior District
Judge.***
Chris Nero appeals his conviction by plea agreement to three counts of
Attempted Evasion of Federal Taxes in violation of 26 U.S.C. § 7201. Because the
parties are familiar with the factual and procedural history of this case, we repeat
only those facts necessary to resolve the issues raised on appeal. We affirm.
We review claims of ineffective assistance of counsel on direct appeal “only
under two extraordinary circumstances, . . . (1) when the record on appeal is
sufficiently developed to permit review and determination of the issue, or (2) when
the legal representation is so inadequate that it obviously denies a defendant his
Sixth Amendment right to counsel.” United States v. Daychild, 357 F.3d 1082,
1095 (9th Cir. 2004) (quoting United States v. Ross, 206 F.3d 896, 900 (9th Cir.
2000)). Neither circumstance is present here. The current record contains little
more than generalized assertions of incompetence. Moreover, Nero’s former
counsel has had no opportunity to explain her alleged actions. See United States v.
Laughlin, 933 F.2d 786, 789 (9th Cir. 1991) (rejecting ineffective assistance of
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
counsel claim on direct appeal where defendant’s counsel was not given an
opportunity to explain his actions). Nor does the record indicate that Nero received
representation “so inadequate that it obviously denie[d]” him his constitutional
rights. Daychild, 357 F.3d at 1095. If anything, the record refutes many of Nero’s
allegations. We therefore decline to address Nero’s claim on direct appeal.
For the same reasons, we deny Nero’s invitation to set aside his guilty plea
as a result of his counsel’s alleged ineffectiveness. “We do not permit withdrawal
of a guilty plea after sentencing unless a manifest injustice would result.” United
States v. King, 257 F.3d 1013, 1024 (9th Cir. 2001) (internal quotation and
citations omitted). Given the evidence here indicating that Nero hopes to withdraw
his plea primarily because he is unhappy with his sentence, and the lack of
evidence that he received inadequate assistance of counsel, denial of Nero’s
request will result in no manifest injustice. Accordingly, Nero’s request is denied.
AFFIRMED