                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-10546

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-1037-PHX-GMS
 v.

FRANCISCO ANIBAL HERNANDEZ-
QUIJADA, AKA Francisco Hernandez,               MEMORANDUM*
AKA Francisco A. Hernandez, AKA
Francisco Anibal Hernandez, AKA
Francisco Hernandez Quijada, AKA
Francisco Hernandez-Quijada, AKA
Francisco Quijada,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    G. Murray Snow, District Judge, Presiding

                          Submitted September 13, 2017**
                             San Francisco, California

Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,***

      *
             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 Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
District Judge.

      Francisco Hernandez-Quijada appeals his sentence imposed following his

guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326. He

was sentenced to 46 months in prison on November 9, 2015. On appeal, Hernandez

brings an ineffective assistance of counsel (IAC) claim, arguing that his sentencing

counsel’s performance fell below an objective standard of reasonableness because

she failed to argue that Ariz. Rev. Stat. § 13-3408(A) is categorically overbroad

and indivisible with regard to its specific type of narcotic drug requirement, and

thus his prior conviction under that section did not qualify as a prior “drug

trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A); as a result, the district court

erroneously imposed a 16-level enhancement under the sentencing guidelines.

Hernandez further asserts that his waiver of the right to appeal any aspect of his

sentence does not apply here because the appeal is based on ineffective assistance

of counsel, which falls outside the scope of the appeal waiver and was expressly

reserved.

      We decline to reach the merits of these claims.1 In the case at hand, the

current record is insufficiently developed to review the IAC claim. United States v.

Moreland, 622 F.3d 1147, 1157 (9th Cir. 2010) (“[A]s a general rule, we do not



1
 Appellant’s motions to take judicial notice (Dkt. Nos. 61, 65) and Appellee’s
motion to take judicial notice (Dkt. No. 64) are DENIED AS MOOT.

                                          2
review challenges to the effectiveness of defense counsel on direct appeal. Rather,

we prefer to review ineffective assistance of counsel claims in habeas corpus

proceedings under 28 U.S.C. § 2255.” (alteration in original) (internal quotation

marks and citation omitted)). There may have been strategic reasons for counsel’s

failure to argue that the Arizona statute was categorically overbroad and indivisible

regarding its narcotic drug requirement, especially given the law in effect at that

time, and development of further evidence is necessary to assess whether counsel

performed below the constitutionally required standard. See United States v.

Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005), overruled on other grounds by

United States v. Jacobo-Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc).

Hernandez may raise his IAC argument on federal habeas procedure, through a

§ 2255 motion. United States v. Laughlin, 933 F.2d 786, 788–89 (9th Cir. 1991)

(“Challenge by way of a habeas corpus proceeding is preferable as it permits the

defendant to develop a record as to what counsel did, why it was done, and what, if

any, prejudice resulted.” (citation omitted)).

      DISMISSED.




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