                           NOT FOR PUBLICATION                           FILED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

UNITED STATES OF AMERICA,                       No.    16-10054

                Plaintiff-Appellee,             D.C. No.
                                                2:11-cr-00216-MCE-1
 v.

DESHAWN ARLANDIS RAY,                           MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Eastern District of California
                Morrison C. England, Jr., District Judge, Presiding

                      Argued and Submitted March 12, 2018
                           San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,**
District Judge.

      Deshawn Ray appeals his conviction and sentence for conspiracy to commit

bank fraud under 18 U.S.C. §§ 1344 and 1349, bank fraud under 18 U.S.C. § 1344,

and aggravated identity theft under 18 U.S.C. § 1028A(a)(1).



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
1.    The district court properly denied Ray’s motion for a new trial under Federal

Rule of Criminal Procedure 33, which argued that his trial counsel, Julius Engel,

provided constitutionally ineffective assistance. “[I]neffective assistance of

counsel claims … are ‘generally inappropriate on direct appeal’ and should be

raised instead in habeas corpus proceedings.” United States v. Steele, 733 F.3d

894, 897 (9th Cir. 2013) (quoting United States v. Ross, 206 F.3d 896, 900 (9th

Cir. 2000)). An exception provides that we may consider such claims so long as

“the record is ‘sufficiently developed to permit review and determination of the

issue.’” United States v. Rivera-Sanchez, 222 F.3d 1057, 1060 (9th Cir. 2000)

(quoting Ross, 206 F.3d at 900). Because the parties fully briefed below the same

two issues Ray raises on appeal, and given that we have the benefit of the

affidavits that Ray and Engel submitted below, that standard is met here. Our

review is de novo. See Rivera-Sanchez, 222 F.3d at 1060.

      Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant pressing

an ineffective assistance claim “must show that: ‘(1) his attorney’s performance

was unreasonable under prevailing professional standards; and (2) that there is a

reasonable probability that but for counsel’s unprofessional errors, the result would

have been different.’” Rivera-Sanchez, 222 F.3d at 1060 (quoting United States v.

Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994)).

      Ray first contends that Engel was ineffective in failing to oppose the


                                          2                                      16-10054
admission of testimony from Ray’s former girlfriend, Debbrah Easterwood, that

she and Ray had engaged in check and credit card fraud before the events for

which he was charged and convicted. The district court admitted the testimony

under Federal Rule of Evidence 404(b), which permits “[e]vidence of a crime,

wrong, or other act” for non-propensity purposes, “such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Fed. R. Evid. 404(b).

      Under United States v. Hardrick, 766 F.3d 1051 (9th Cir. 2014), “[t]he

proponent of [Rule] 404(b) evidence must show that the evidence ‘(1) proves a

material element of the offense for which the defendant is now charged, (2) if

admitted to prove intent, is similar to the offense charged, (3) is based on sufficient

evidence, and (4) is not too remote in time.’” Id. at 1055 (quoting United States v.

Ramirez-Robles, 386 F.3d 1234, 1242 (9th Cir. 2004)). Ray argued below that

Engel should have objected to the Government’s notice of Easterwood’s testimony

under Hardrick’s fourth prong. As the district court held, however, it is clear from

Easterwood’s trial testimony that her and Ray’s earlier conduct was sufficiently

recent to be admissible.

      Ray does not challenge the district court’s finding that the Government

turned over discovery regarding Easterwood’s anticipated Rule 404(b) testimony

more than a year before trial, nor that the discovery revealed that her testimony


                                           3                                    16-10054
would concern “the period of time while [she] and the defendant were dating, or

from 2006 to 2008.” Given that the charged conspiracy ran from March 2008

through July 2010, and concerned financial fraud, Easterwood’s testimony about

Ray’s participation in the previous financial fraud would have satisfied Hardrick’s

fourth prong, and thus would have been admitted under Rule 404(b) even had

Engel objected. See Ramirez-Robles, 386 F.3d at 1243 (holding under Rule 404(b)

that evidence of the defendant’s prior conduct was not “too remote” because it

occurred three or four years before “the charged conduct”); United States v.

Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997) (admitting Rule 404(b) evidence

despite the “thirteen or more years that had elapsed since the events about which

the witnesses testified” because “[t]he prior act evidence in this case is sufficiently

similar to the charged conduct to render it probative despite the passage of time”).

Accordingly, because any objection to the remoteness in time of the proposed Rule

404(b) evidence would have been futile, Ray cannot show prejudice under

Strickland.

      Ray next contends that Engel was ineffective in failing to prepare him to

testify at trial. As he did below, Ray asserts that Engel “never met with him

outside the courthouse” and that all their meetings “occurred immediately before or

after a court appearance and … either in the courthouse hallway or … the

courthouse cafeteria.” Ray asks us to take judicial notice of the fact that Engel has


                                           4                                    16-10054
been found culpable in two California disciplinary proceedings.1 And Ray

contends that at least one of those proceedings had been initiated at the time of

Ray’s trial, and so might have preoccupied Engel when he was representing Ray.

      Regardless of whether Engel’s efforts in preparing Ray for trial were

deficient under Strickland, see Correll v. Ryan, 539 F.3d 938, 943 (9th Cir. 2008)

(requiring “adequate consultation between attorney and client” (alteration and

internal quotation marks omitted)), Ray cannot satisfy Strickland’s prejudice

prong. See Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (“If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice … that course should be followed.” (alteration in original) (quoting

Strickland, 466 U.S. at 697)). As the district court held, there was “ample

evidence … to convict” Ray, regardless of whether he had chosen not to testify or

had testified differently. The scheme as charged involved fraudulently obtaining

identifying information for wealthy bank account holders and then linking their

accounts to others opened by “runners”; once the accounts were linked, the runners

would withdraw money, keeping a small portion for themselves. At least four of

the scheme’s participants testified that Ray was responsible for recruiting runners

and directing their activities; a federal agent and a Wells Fargo investigator traced

money from the scheme to Ray’s personal account; and at least one victim testified


      1
          That request for judicial notice is GRANTED. Fed. R. Evid. 201.

                                          5                                    16-10054
that, unbeknownst to him, he had held a joint account with Ray from which over

$135,000 had been withdrawn.

      Ray does not identify what else he could have said at trial to counter what

the district court rightly described as an “overwhelming” array of evidence. Nor

does Ray explain how his silence at trial would have created a reasonable

probability of a different outcome. The district court thus did not err in rejecting

Ray’s ineffective assistance claim as it pertained to trial preparation. See Anderson

v. Calderon, 232 F.3d 1053, 1086 (9th Cir. 2000) (holding that there was no

Strickland prejudice where the defendant “fail[ed] to identify any specific way in

which his decisions or defense would have differed had [his lawyer] met

personally with him in jail prior to trial instead of in court”), overruled on other

grounds by Osband v. Woodford, 290 F.3d 1036, 1043 (9th Cir. 2002); United

States v. Lucas, 873 F.2d 1279, 1280 (9th Cir. 1989) (per curiam) (holding that

there was no Strickland prejudice where the defendant “[did] not allege what

purpose additional consultation … would have served”).2

2.    We reject Ray’s contention that the district court violated Criminal Rule

32(i)(3)(B) by failing to give proper consideration to his objections to the



      2
         We express no opinion as to whether Ray may bring additional challenges
to Engel’s performance on collateral review under 18 U.S.C. § 2255, including as
to the effect (if any) of his decision to testify, or his preparedness to do so, on his
sentence.

                                           6                                     16-10054
presentence investigation report (“PSR”). Our review of this issue is de novo. See

United States v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008).

      Rule 32(i)(3)(B) provides: “At sentencing, the court … must—for any

disputed portion of the presentence report or other controverted matter—rule on

the dispute or determine that a ruling is unnecessary … .” Fed. R. Crim. P.

32(i)(3)(B) (emphasis added). “Only specific factual objections trigger [the rule].”

Stoterau, 524 F.3d at 1011; see also United States v. Christensen, 732 F.3d 1094,

1102 (9th Cir. 2013) (same); United States v. Petri, 731 F.3d 833, 841-42 (9th Cir.

2013) (same). Here, Ray objected not to any of the facts set forth in the PSR, but

only to the legal conclusions the district court drew from those facts. Accordingly,

before adopting the PSR’s statements of fact, it was appropriate for the district

court simply to note that Ray had made objections to the PSR. See Christensen,

732 F.3d at 1102 (“Because Christensen never made specific factual objections to

the PSR regarding victim impact and loss amounts, Rule 32 was never triggered.”);

Petri, 731 F.3d at 841 (“Petri objected specifically to the probation officer’s

recommendation against a minor role reduction; he raised these assertions in

support of that objection. But he did not allege a factual inaccuracy in the

presentence report. The district court therefore had no responsibility to rule on [his

objections].”); Stoterau, 524 F.3d at 1012 (holding that, because the defendant did

not raise “a specific factual dispute about issues affecting the temporal term of


                                          7                                       16-10054
sentence,” and instead presented “a general evidentiary legal challenge to the

inclusion of information in the PSR drawn from sources other than the plea

agreement[,] … the district court did not violate Rule 32(i)(3)(B) by not ruling on

[the defendant’s] objection”).

3.    We reject Ray’s contention that the district court erred in applying a four-

level enhancement under § 3B1.1(a) of the Sentencing Guidelines when calculating

his advisory Guidelines range. Our review is for abuse of discretion. See United

States v. Diaz, 884 F.3d 911, 914 (9th Cir. 2018).

      Section 3B1.1(a) provides that a defendant will receive a four-level

sentencing enhancement “[i]f [he] was an organizer or leader of a criminal activity

that involved five or more participants or was otherwise extensive.” U.S.

Sentencing Guidelines Manual (U.S.S.G.) § 3B1.1(a). Ray contends that he could

not have been an “organizer or leader” of the charged scheme because his co-

defendant, Reginald Thomas, ran it. Ray is mistaken. Application Note 4 to

§ 3B1.1 makes clear that “[t]here can … be more than one person who qualifies as

a leader or organizer of a criminal association or conspiracy.” U.S.S.G. § 3B1.1

cmt. n. 4. And we have previously held that, if the record permits, a district court

may apply the four-level leadership enhancement to multiple defendants within the

same conspiracy. See United States v. Rivera, 527 F.3d 891, 910 (9th Cir. 2008)

(“[T]he fact that Rigoberto may have been more responsible for day-to-day


                                          8                                    16-10054
operations than Gilberto does not mean that Rigoberto was not also a leader or

organizer.”); United States v. Ponce, 51 F.3d 820, 825-27 (9th Cir. 1995) (per

curiam) (upholding application of the enhancement even though the defendant’s

father-in-law was the “patriarch of the family smuggling business and oversaw its

general operation”).

      The Application Note sets forth several criteria to guide analysis of the

enhancement, including “the exercise of decision making authority, the nature of

participation in the commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the degree of participation

in planning or organizing the offense, the nature and scope of the illegal activity,

and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1

cmt. n.4; see United States v. Allen, 341 F.3d 870, 892-93 (9th Cir. 2003) (listing

and applying the factors). The record reflects that Thomas and Ray exercised joint

decision-making authority over the scheme, with Ray taking primary responsibility

for recruiting and managing runners and coordinating cash withdrawals, and that

the two men divided much of the scheme’s proceeds equally between themselves,

with accomplices receiving substantially smaller payouts. The district court

therefore was amply justified in applying the four-level leadership enhancement to

Ray. See United States v. Armstead, 552 F.3d 769, 777 n.8 (9th Cir. 2008) (“Given

the prodigious evidence presented at trial detailing Armstead’s role in the


                                           9                                    16-10054
conspiracy, and particularly the testimony from co-conspirators that Armstead

recruited them, directed their actions, and collected fifty percent of their proceeds,

we cannot say that the district court abused its discretion when applying the four-

level enhancement for Armstead’s role in the conspiracy.”); Allen, 341 F.3d at 893

(same, noting “the plethora of evidence that [the defendants receiving the

enhancement] were the leaders of the [conspiracy] and encouraged … members to

engage in racially and religiously-motivated crimes”).

4.    Finally, we reject Ray’s argument that his 145-month sentence, which fell at

the low end of the advisory Guidelines range, is substantively unreasonable. Our

review is for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51

(2007); United States v. Treadwell, 593 F.3d 990, 1009 (9th Cir. 2010).

      Ray contends that the district court abused its discretion in giving him a 145-

month sentence because Thomas, his co-defendant, was the scheme’s true

mastermind. We disagree. Unlike Ray, Thomas pleaded guilty and cooperated

with the Government. Because “a sentencing disparity based on cooperation is not

unreasonable,” United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009), Ray’s

substantive unreasonableness challenge fails.

      AFFIRMED.




                                          10                                    16-10054
                                                                      FILED
                                                                      MAY 24 2018
United States v. Ray, No. 16-10054                                MOLLY C. DWYER, CLERK
                                                                    U.S. COURT OF APPEALS

FRIEDLAND, Circuit Judge, concurring in part and concurring in the judgment:

      Rather than reaching the merits of Ray’s ineffective assistance of counsel

claim based on Engel’s alleged failure to prepare him to testify, I would hold that

the record is insufficiently developed to decide that claim at this stage. See United

States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991).

      The Government does not dispute that, if Engel failed to prepare Ray to

testify, that omission would amount to deficient performance. See Turner v.

Duncan, 158 F.3d 449, 457 (9th Cir. 1998). Instead, the Government disputes

Ray’s factual allegations about Engel’s failure to meet with him to prepare. But

we cannot resolve this fact dispute absent an evidentiary hearing in the district

court. See United States v. Steele, 733 F.3d 894, 898 (9th Cir. 2013).

      Unlike the panel majority, I do not believe the record is sufficiently

developed to allow us to determine whether Ray was prejudiced by any failure to

prepare him to testify. The district court’s comments suggest that Ray’s testimony

harmed his case. And while it is true that Ray has not explained what he would

have done differently if Engel had prepared him properly, that is the type of issue

best developed on collateral review when the record can be supplemented.

      Indeed, even the Government does not defend the district court’s decision to

deny on the merits the ineffective assistance of counsel claim regarding Ray’s
testimony. The Government argues on appeal only that the claim requires a fuller

record and so should be considered on collateral review. We are in no better

position than the Government to assess whether Ray may be able to support an

argument for prejudice with evidence he might submit on collateral review. Rather

than giving the Government more than it asks for by precluding Ray from even

trying to bolster his prejudice claim, I would decline to reach the merits of this

issue and would thereby leave it open for resolution in the event Ray were to

reassert it on collateral review.

      I otherwise fully concur in the majority’s disposition.




                                          2
