                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 12 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-10514

              Plaintiff - Appellee,              D.C. No. 1:06-cr-00100-OWW-1

  v.
                                                 MEMORANDUM*
ADAM JOHN SORTINI,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                Oliver W. Wanger, Senior District Judge, Presiding

                           Submitted January 10, 2011**
                             San Francisco, California

Before: WALLACE, NOONAN, and SILVERMAN, Circuit Judges.

       Adam Sortini (“Sortini”) was convicted of 17 counts of mail fraud, and one

count of health care fraud. He moved for a new trial, arguing his attorney was




        *
             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).
ineffective in both pretrial preparation and at trial. He appeals the district court’s

denial of that motion.

      This case does not present a record regarding trial preparation that is

sufficiently developed for us to decide whether Sortini’s attorney rendered

ineffective pretrial assistance. See United States v. Sager, 227 F.3d 1138, 1149 (9th

Cir. 2000).

      With regard to trial performance, the evidence against Sortini was so

overwhelming that he cannot show that counsel’s performance could have

prejudiced him. See, e.g., Allen v. Woodford, 395 F.3d 979, 1002 (9th Cir. 2005).

Because Sortini is required to show both deficient performance and prejudice in

order to prevail on his ineffective assistance claim, this shortcoming is fatal. See

Strickland v. Washington, 446 U.S. 668, 697 (1984).



AFFIRMED.
