                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         OCT 30 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.    17-35824

                Plaintiff-Appellee,              D.C. Nos.     4:16-cv-00020-BMM
                                                               4:13-cr-00032-BMM-1
 v.

JOSEPH CHRISTOPHER BIRDTAIL,                     MEMORANDUM*

                Defendant-Appellant.

                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                      Argued and Submitted October 11, 2018
                               Seattle, Washington

Before: PAEZ and BEA, Circuit Judges, and ROYAL, ** District Judge.

      Defendant-Appellant Joseph Birdtail appeals the district court’s denial of his

amended petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255. The district court issued a certificate of appealability on the issues of

whether the performance of Birdtail’s original counsel or the performance of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable C. Ashley Royal, Senior United States District Judge
for the Middle District of Georgia, sitting by designation.
Birdtail’s sentencing counsel caused him prejudice under Hill v. Lockhart, 474

U.S. 52 (1985). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We

review a district court's denial of a § 2255 motion de novo, United States v. Reves,

774 F.3d 562, 564 (9th Cir. 2014) (citation omitted), and we affirm.

      Birdtail argues that his original counsel was ineffective in grossly

miscalculating his possible sentencing guideline range, and that without this error,

he would have proceeded to trial. To assert a successful claim of ineffective

assistance of counsel in the context of a guilty plea, “the defendant must show that

counsel’s representation fell below an objective standard of reasonableness.” Hill,

474 U.S. at 57 (internal citation and quotation omitted). The defendant must also

show “that there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

      Here, regardless whether counsel’s representation fell below an objective

standard of reasonableness, Birdtail’s claim fails because he did not move to

withdraw his guilty plea after he was informed of the correct sentencing guideline

range. Before his original sentencing date, Birdtail was given a copy of his

Presentence Investigation Report (“PSR”) and realized that the sentencing

guideline range he faced was significantly higher than the range his counsel told

him would apply. As a result, the attorney-client relationship deteriorated, and

counsel filed a motion to withdraw. The district court held a hearing on the motion,


                                          2                                      17-35824
appointed Birdtail new counsel, and rescheduled sentencing. Despite this

process—in which the trial court gave him ample opportunity to move to withdraw

his plea—Birdtail never moved to withdraw his guilty plea. He therefore cannot

show that but for his counsel’s errors he would not have pleaded guilty and

proceeded to trial.

      Additionally, Birdtail argues that both original and sentencing counsel were

ineffective in not advising him to withdraw his guilty plea. As previously

discussed, Birdtail cannot show prejudice, as he chose to proceed to sentencing

after being informed of the actual guideline range. Moreover, recommending

against a trial on charges of sexually abusing a child was hardly unwise. Given the

evidence against Birdtail, recommending against a plea withdrawal was not just

within the “wide range of reasonable professional assistance;” it was “sound trial

strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984).

      AFFIRMED.




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