                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 15 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30344

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00062-RSL-19

  v.
                                                 MEMORANDUM*
RAUL ANCHONDO, AKA Pecce,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                          Submitted December 11, 2014**
                               Seattle, Washington

Before: McKEOWN, TALLMAN, and OWENS, Circuit Judges.

       Raul Anchondo appeals the district court’s denial of his Motion to Enforce a

Plea Agreement and ineffective assistance of counsel claims. Anchondo argues

that his trial counsel, David Hammerstad, did not communicate his plea


        *
             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).
agreement’s April 25th deadline, and asks this court to enforce the expired plea

agreement and find Hammerstad constitutionally ineffective based on his failure to

communicate the deadline.

      First, the district court made a factual finding that Hammerstad did

communicate the plea agreement deadline to Anchondo, and this finding is not

clearly erroneous. United States v. Overton, 573 F.3d 679, 688 (9th Cir. 2009).

Despite the lack of live testimony, there was substantial documentary evidence

from which the district court could make a factual finding. Watts v. United States,

841 F.2d 275, 277 (9th Cir. 1988); Williams v. Woodford, 306 F.3d 665, 688–89

(9th Cir. 2002) (even when credibility is at issue, if the evidence in the record fully

presents relevant facts and live testimony would not alter the court’s view of the

record, no evidentiary hearing is required). The written record included affidavits

by Anchondo, Hammerstad, the prosecutor who negotiated the plea agreement, and

Anchondo’s newly appointed counsel. The record also included a multitude of

emails exchanged between Hammerstad and the negotiating prosecutor during the

relevant period that explicitly state the plea agreement’s deadline. Even

Hammerstad’s written notes indicated he communicated that “time was of the

essence” to Anchondo.




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         Based on this credibility determination that Anchondo’s trial attorney did

communicate the plea agreement’s deadline, the court properly concluded that

Anchondo’s untimely acceptance did not create an enforceable plea agreement.

United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001) (noting that plea

agreements are evaluated under contract law); Restatement (Second) of Contracts,

§§ 36, 41(1) (1981).

         Second, Anchondo failed to show deficient performance and/or prejudice in

his ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S.

668, 694 (1984). Although, “as a general rule, we do not review challenges to the

effectiveness of defense counsel on direct appeal,” here, “the record on appeal is

sufficiently developed to permit determination of the issue.” United States v.

Rahman, 642 F.3d 1257, 1259–60 (9th Cir. 2011) (citing United States v.

Jeronimo, 398 F.3d 1149, 1155–56 (9th Cir. 2005)).

         Anchondo asserts deficient performance because Hammerstad (1) did not

specifically tell Anchondo that the government’s offer would lapse on April 25th,

(2) did not effectively communicate the contractual consequences of making a

counteroffer, and (3) did not monitor his email Friday evening, April 26th, and

convey Anchondo’s acceptance to the prosecutor soon after Anchondo’s 7:19 p.m.

email.


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      Given the district court’s factual finding that Hammerstad did communicate

the April 25th deadline, no deficient performance can be established on this basis.

Next, assuming Hammerstad did not explain to Anchondo that making a

counteroffer would effectively void the prosecutor’s initial offer, Anchondo cannot

show prejudice where the prosecutor rejected Anchondo’s counteroffer but then

put the original plea back on the table. Finally, even if Hammerstad provided

ineffective assistance by not monitoring his email the evening of Friday, April

26th, Anchondo cannot show that “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

The prosecutor expressly stated that had Hammerstad called him at 7 p.m. Friday

evening, he would have rejected Anchondo’s acceptance as untimely.

      AFFIRMED.




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