                                                                              FILED
                                NOT FOR PUBLICATION
                                                                               OCT 2 2015
                         UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

                                 FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                           No. 14-10215

             Plaintiff - Appellee,                   D.C. No. 3:10-cr-00105-CRB-1

   v.
                                                     MEMORANDUM *
 MICHAEL OHAYON,

             Defendant - Appellant.



 UNITED STATES OF AMERICA,                           No. 14-10221

             Plaintiff - Appellant,                  D.C. No. 3:10-cr-00105-CRB-1

   v.

 MICHAEL OHAYON,

             Defendant - Appellee.

                       Appeal from the United States District Court
                           for the Northern District of California
                     Charles R. Breyer, Senior District Judge, Presiding

                               Submitted September 16, 2015**

        *
             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
                             San Francisco, California

Before: CHRISTEN and FRIEDLAND, Circuit Judges and LEMELLE,*** District
Judge.

      Michael Ohayon pled guilty to one count of bank fraud, 18 U.S.C. § 1344,

one count of conspiracy to commit bank fraud, 18 U.S.C. § 1349, and one count of

money laundering, 18 U.S.C. § 1957. Ohayon initially received a 60-month

sentence. Ohayon then filed a § 2255 motion, arguing that he received ineffective

assistance of counsel during the sentencing proceedings. The district court granted

the motion and reduced Ohayon’s sentence to 38 months. Ohayon appeals this

sentence, and the Government cross-appeals, challenging the district court’s grant

of the § 2255 motion.

      Ohayon’s counsel’s performance at the initial sentencing was not

unconstitutionally deficient. The attorney’s failure to raise the pending Guidelines

amendment did not render his representation objectively unreasonable. Strickland

v. Washington, 466 U.S. 668, 687-88 (1984) (deficient performance must fall

below “an objective standard of reasonableness”); United States v. McMullen, 98

F.3d 1155, 1158 (9th Cir. 1996) (adopting the Government’s position that the “fact

that defendant’s lawyer was not innovative enough to raise this issue does not


without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
make him constitutionally defective”). Although the district court articulated

sound reasons for the sentence imposed on resentencing, that sentence was

imposed as a remedy for the § 2255 claim, which should not have been granted at

all.

       Ohayon’s argument that his defense counsel during the second sentencing

was himself constitutionally ineffective was raised for the first time in Ohayon’s

reply brief and is therefore waived. United States v. Jefferson, 791 F.3d 1013,

1019 n.7 (9th Cir. 2015). The other issues Ohayon raises on appeal were waived

as part of his plea agreement and are thus rejected. 1

       The district court’s grant of Ohayon’s § 2255 motion is REVERSED.




1
  Ohayon’s motion to withdraw arguments is denied as moot. Further, Ohayon’s
Supplemental Excerpts of Record include a letter that was not part of the district
court record, in violation of Federal Rule of Appellate Procedure 10(a)(1). We
therefore strike that material from Ohayon’s Supplemental Excerpts of Record.
Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1128 (9th Cir. 2009).
