                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 20 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-16716

              Plaintiff - Appellee,              D.C. Nos.    4:13-cv-03951-DLJ
                                                              4:10-cr-00524-DLJ-1
  v.

CHERRYL WORLEY, AKA Cherryl                      MEMORANDUM*
Ferguson,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                 D. Lowell Jensen, Senior District Judge, Presiding

                            Submitted April 13, 2016**
                             San Francisco, California

Before: O’SCANNLAIN, CLIFTON, and N.R. SMITH, Circuit Judges.

       Cherryl Worley appeals the district court’s denial of her 28 U.S.C. § 2255

habeas petition. Worley alleges she received ineffective assistance of counsel when

her attorney failed to challenge a 4-level enhancement for fifty or more victims

        *
             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).
under U.S.S.G. § 2B1.1(b)(2)(B). We have jurisdiction under 28 U.S.C. § 2253.

We affirm.

      We determine whether Worley received ineffective assistance of counsel

using a two-step analysis. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

First, Worley must show that her attorney’s performance was deficient, falling

below an objective standard of reasonableness. Id. at 687-88. Second, if her

counsel’s performance were deficient, Worley must show that she was prejudiced

as a result of that performance. Id. at 687. The Supreme Court has held that

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky,

559 U.S. 356, 371 (2010). When determining whether counsel’s performance was

deficient, we apply a “highly deferential” approach, “indulg[ing] a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689. Applying that presumption,

we must make an effort “to eliminate the distorting effects of hindsight” and to

“evaluate the conduct from counsel’s perspective at the time.” Id. “[T]he relevant

inquiry . . . [is] whether the choices made by defense counsel were reasonable.”

Murray v. Schriro, 745 F.3d 984, 1011 (9th Cir. 2014) (quoting Babbitt v.

Calderon, 151 F.3d 1170, 1173 (9th Cir 1998)).




                                          2
1.    Worley’s counsel’s performance was not deficient during plea negotiations,

because it was not objectively unreasonable for her counsel to assume (when

negotiating the agreement) that a complete loss calculation would be included in

the Presentence Investigation Report and considered at sentencing. Worley

concedes that the fraudulent scheme from which the charges arose involved fifty-

seven individuals and four corporations. Even though the individual victims were

made whole by the victim corporations, it was probable that the individual victims

could nonetheless be included in the final loss calculation: the individual victims

had likely spent time and money procuring new identifications, and thus had likely

suffered pecuniary harm. See United States v. Armstead, 552 F.3d 769, 782 (9th

Cir. 2009) (“time and money spent procuring new identification and credit cards,

opening new bank accounts, and mending . . . credit” may constitute pecuniary

harm).

      Worley’s counsel’s performance also was not deficient at sentencing.

Because the parties had stipulated that the victim enhancement would apply, it was

not necessary for the district court to include a complete loss calculation in its

decision. See United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002)

(“Plea agreements are contractual by nature and are measured by contract law

standards.”). As the district court noted, “[Worley] specifically agreed in


                                           3
paragraph 9 of the plea agreement that [the victim enhancement] was appropriate

and that ‘all of the losses . . . and the amount of the loss (and the number of victims

associated with that loss)’ were attributable to her and that the loss calculation

could include losses from more than just the counts to which she was pleading

guilty.” If Worley’s counsel had objected to the victim enhancement, Worley

would have breached the plea agreement and the previously dropped charges

would have been reinstated.

2.    Even if Worley’s counsel’s performance were deficient either during plea

negotiations or at sentencing, Worley was not prejudiced as a result. At the time

the plea agreement was being negotiated, Worley was facing 114 separate fraud

and identity theft charges. The government offered to drop all but six of these

charges and agreed to recommend a low-end sentence, even though Worley had a

criminal history category of VI. When considering her habeas petition, the district

court noted that, “given the gravity of [Worley’s] conduct combined with [her]

long history of flouting the authority of the courts as demonstrated by her criminal

history, [Worley] should be fully cognizant of the positive effect her counsel had

on the analysis by the Court of its sentencing options and its ultimate sentencing

determination.” Thus, Worley has failed to establish that “there is a reasonable




                                           4
probability that . . . the result of the proceeding would have been different” but for

her counsel’s performance. See Strickland, 466 U.S. at 694.

      AFFIRMED.




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