United States v. Luis Rendon-Agudelo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-55425
Plaintiff-Appellee, D.C. No.
5:13-cv-01335-VAP
v.
LUIS CARLOS RENDON-AGUDELO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Submitted August 31, 2016**
Pasadena, California
Before: WARDLAW and BYBEE, Circuit Judges, and ZIPPS,*** District Judge.
Luis Carlos Rendon-Agudelo (Rendon) appeals the district court’s denial of
his motion to vacate, set aside, or correct his sentence, claiming that he is entitled
*
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).
***
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
to relief because he received ineffective assistance of counsel in his criminal drug
trafficking case. We have jurisdiction pursuant to 28 U.S.C. § 2255, and we
affirm.
Rendon claims he received ineffective assistance of counsel in violation of
the Sixth Amendment because his attorney failed to timely communicate the
government’s plea offer to him, and because he would have accepted the plea had
he known of the offer. See United States v. Blaylock, 20 F.3d 1458, 1465–66 (9th
Cir. 1994). After holding an evidentiary hearing, the district court properly
concluded that Rendon failed to establish either deficient performance or prejudice.
The district court did not clearly err in deeming credible counsel Joseph
Vodnoy’s declaration and the testimony of his paralegal, Kathleen Caulfield, that
counsel timely and repeatedly informed Rendon of the plea offer and that, though
Rendon wished to plead guilty, he insisted on maintaining his innocence. Given
Rendon’s refusal to admit to the elements of the alleged crime, a factual predicate
for a guilty plea could not be established before the plea offer expired.
The district court did not clearly err by not crediting Rendon’s testimony
that he was willing to admit to the factual basis, but was “banned” from speaking
to the court. The district court properly found that Rendon’s allocution and
numerous other opportunities to address the court belied this assertion.
2
Nor did the district court err in rejecting Rendon’s contention that the
absence of records of personal and telephonic conversations made by defense
counsel and his staff established counsel’s failure timely to convey the plea offer.
And the Sixth Amendment requires only that the plea agreement was adequately
conveyed—not that it was reduced to writing. See United States v.
Rivera-Sanchez, 222 F.3d 1057, 1061 (9th Cir. 2000).
Rendon maintained he was innocent throughout the criminal proceedings,
which precluded entry of a plea agreement that could be accepted by the court, and,
therefore, is not able to demonstrate prejudice.
AFFIRMED.
3