                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 24 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-15693

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00886-JCM
 v.

TARA MAZZEO,                                    MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                       Argued and Submitted July 13, 2018
                           San Francisco, California

Before: HAWKINS, BEA, HURWITZ, Circuit Judges.

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

motion to vacate, set aside, or correct her 2013 conviction and sentence for two

counts of making false statements to the Internal Revenue Service, in violation of

18 U.S.C. § 1001. Reviewing de novo, see United States v. Ratigan, 351 F.3d 957,

961 (9th Cir. 2003) (citing United States v. Benboe, 157 F.3d 1181, 1183 (9th Cir.


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1998)), we hold that the district court did not err when it found that Mazzeo failed

to demonstrate ineffective assistance of counsel. We therefore affirm.1

       To prevail on a claim of ineffective assistance of counsel, Mazzeo must

show both that her counsel’s performance was deficient and that the deficient

performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668,

687–88 (1984). She established neither prong here.

       First, it was not objectively unreasonable for Mazzeo’s counsel to allow the

jury to be instructed based on Ninth Circuit model jury instructions. See id. at

687–88 (“When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that counsel’s representation fell

below an objective standard of reasonableness.”). In evaluating claims for

ineffective assistance of counsel, we ask “whether an attorney’s representation

amounted to incompetence under ‘prevailing professional norms,’ not whether it

deviated from best practices or most common custom.” Harrington v. Richter, 562

U.S. 86, 105 (2011) (emphasis added) (quoting Strickland, 466 U.S. at 690).

Although it may be best practice to lodge objections to jury instructions even when

they are consistent with prevailing law, an attorney’s failure to do so does not

amount to constitutionally deficient performance.



   1
     Because the parties are familiar with the facts and procedural history of this
case, we need not recount them here.

                                          2
      Second, Mazzeo has failed to show prejudice because the jury instruction to

which she now objects was—and still is—consistent with prevailing circuit law.

See United States v. Tatoyan, 474 F.3d 1174, 1182 (9th Cir. 2007) (holding that

“willfully” in 18 U.S.C. § 1001 means only “deliberately and with knowledge”).

To show prejudice, Mazzeo would have to show “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. In other words, she would have

to prove that, had her attorney lodged an objection, it is reasonably probable the

district court would have instructed the jury that § 1001 requires the government to

prove she acted with knowledge that her conduct was unlawful. Given that such an

instruction would be a misstatement of the law under Tatoyan, it is not reasonably

probable that the district court would have adopted it—indeed, such an instruction

would have been error. See Hunter v. County of Sacramento, 652 F.3d 1225, 1232

(9th Cir. 2011) (stating that a jury instruction’s misstatement of the law is

reversible error unless harmless).

      AFFIRMED.




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