United States v. Linda Nguyen ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10227
Plaintiff-Appellee, D.C. No. 4:19-cr-00045-PJH-1
v.
MEMORANDUM*
LINDA NGUYEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Linda Nguyen appeals from the district court’s judgment and challenges the
24-month sentence imposed following her guilty-plea conviction for conspiracy to
commit mail fraud in violation of 18 U.S.C. §§ 1341 and 1349. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Nguyen contends that she was denied effective assistance of counsel at
sentencing.1 As the government concedes, this claim is not barred by the appeal
waiver in the parties’ plea agreement because Nguyen expressly reserved the right
to claim that counsel was ineffective. However, we decline to review Nguyen’s
claim on direct appeal because the record is not sufficiently developed to permit
review of the claim, nor is it clear that defense counsel’s performance was
inadequate based on the current record. See United States v. Rahman, 642 F.3d
1257, 1259-60 (9th Cir. 2011). Contrary to Nguyen’s argument, these
circumstances do not support remand for additional fact-finding; instead, Nguyen
may raise her ineffective assistance of counsel claim in collateral proceedings. See
id. at 1260.
Nguyen’s unopposed motion to file Volume II of the Further Excerpts of
Record under seal is granted. The Clerk will file publicly the motion at Docket
Entry No. 37-1 and the declaration at Docket Entry No. 37-2, and will file under
seal Volume II of the Further Excerpts of Record at Docket Entry No. 37-3.
AFFIRMED.
1
Although Nguyen’s opening brief suggested that she was raising additional
claims, she clarified in her reply brief that her sole claim on appeal is that counsel
was ineffective. The additional arguments, she explained, were offered solely to
prove prejudice from the alleged ineffective assistance.
2 20-10227