                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 28 2010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. 08-35539

               Plaintiff - Appellee,             D.C. No. 2:07-cv-01738-JLR

  v.
                                                 MEMORANDUM *
EVANGELOS DIMITRIOS SOUKAS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Federal prisoner Evangelos Dimitrios Soukas appeals from the district

court’s order denying his motion under 28 U.S.C. § 2255. We have jurisdiction

under 28 U.S.C. § 2253, 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).
      Soukas contends that his appellate counsel was ineffective because she did

not challenge the district court’s failure to calculate Soukas’ criminal history

category on direct appeal. In light of the district court’s comments at sentencing,

Soukas cannot show “a reasonable probability that he would have received a

different sentence” but for the district court’s failure to calculate his criminal

history category. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008)

(applying plain error analysis where counsel failed to object to procedural error at

sentencing). Accordingly, Soukas cannot show a reasonable probability that he

would have prevailed on direct appeal, and his ineffective assistance of appellate

counsel claim fails. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).

      AFFIRMED.




                                            2                                        08-35539
