                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 19 2012

                                                                        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. 09-36095

              Plaintiff - Appellee,              D.C. Nos. 1:09-cv-00006-RFC
                                                           1:07-cr-00022-RFC-1
  v.

JOSE ANGEL TORRES-GUARDADO,
                                                 MEMORANDUM *
              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Richard F. Cebull, District Judge, Presiding

                     Argued and Submitted December 5, 2012
                               Seattle, Washington

Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.**

       Federal prisoner Jose Angel Torres-Guardado appeals the district court’s

denial of his 28 U.S.C. § 2255 motion. At issue is whether appellate counsel


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **     The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
rendered ineffective assistance by failing to appeal the inadequate factual basis for

Torres-Guardado’s Rule 11 guilty plea to the charge of conspiracy to distribute

methamphetamine. We have jurisdiction under 28 U.S.C. § 2255, and we affirm.

      Analyzing Torres-Guardado’s ineffective assistance claim under Strickland

v. Washington, 466 U.S. 668 (1984), we agree with the district court’s decision that

Torres-Guardado has failed to demonstrate that his Sixth Amendment right to

counsel was violated. Specifically, Torres-Guardado has not established that he

suffered prejudice as a result of his counsel’s failure to appeal the inadequate

factual basis for his guilty plea.1 Documents produced by the government in

discovery show that Torres-Guardado purchased drugs from a co-conspirator in

Denver. Torres-Guardado also admitted to the magistrate judge that he did not

manufacture the drugs himself. Based on the entire record, Torres-Guardado has

failed to show a reasonable probability that but for the alleged Rule 11 error he

would not have entered the guilty plea. See United States v. Dominguez Benitez,




      1
        An ineffective assistance of counsel claim is analyzed under the two-part
test developed in Strickland. The “defendant must show that counsel’s
performance was deficient” and “the defendant must show that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. The court may
address these prongs in either order and it need not analyze both parts if the
defendant cannot establish either prong. Id. at 697.

                                           2
542 U.S. 74, 83 (2004); United States v. Monzon, 429 F.3d 1268, 1271-72 (9th Cir.

2005).

         AFFIRMED.




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