                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 29 2010

                                                                         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. 09-30384

               Plaintiff - Appellee,              D.C. No. 9:09-cr-00023-DWM

  v.
                                                  MEMORANDUM *
DAVID PAUL PETERS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       David Paul Peters appeals from his 262-month sentence imposed following

his guilty-plea conviction for conspiracy to possess with intent to distribute heroin,

in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

          *
             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).
      Peters contends that his counsel was ineffective by failing to challenge the

district court’s finding that the conspiracy started in 2005, giving rise to a career

offender designation that led to a higher advisory guidelines range. Although we

generally do not address claims of ineffective assistance of counsel on direct

review, we can consider the merits where the record on appeal is sufficiently

developed to permit determination of the issue. See United States v. Alferahin, 433

F.3d 1148, 1160-61 n.6 (9th Cir. 2006). The record reflects that Peters’s counsel

was not deficient, nor was Peters prejudiced by any possibly deficient

performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

      AFFIRMED.




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