                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 13 2011

                                                                         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. 09-17337

              Plaintiff - Appellee,              D.C. Nos.     1:08-cv-00566-SOM-
                                                               LEK
  v.                                                           1:05-cr-00071-SOM-
                                                               1
ZASHA BOTELHO,

              Defendant - Appellant.             MEMORANDUM *



                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                       Argued and Submitted October 7, 2011
                                Honolulu, Hawaii

Before: O’SCANNLAIN, TALLMAN, and M. SMITH, Circuit Judges.

       Zasha Botelho appeals the district court’s denial of her 28 U.S.C. § 2255

motion to vacate, set aside, and correct her sentence alleging ineffective assistance

of counsel during plea bargaining. United States v. Botelho, No. 05-00071, 2009


        *
              This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3. The parties are familiar with the
facts of the case and we do not repeat them here except as necessary.

                                          1
U.S. Dist. LEXIS 93062 (D. Haw. Oct. 6, 2009). The defendant contends that her

counsel was ineffective by erroneously advising her as to the amount of

cooperation necessary to qualify for a downward departure recommendation for

substantially assisting the government. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291, 2253, and 2255, and we affirm.

      “The two-part Strickland v. Washington, 466 U.S. 668 (1984), test applies to

challenges to guilty pleas based on ineffective assistance of counsel.” Hill v.

Lockhart, 474 U.S. 52, 58 (1985). To prevail on an ineffective assistance of

counsel claim in the plea context, a defendant must show that: (1) in light of all the

circumstances, counsel’s performance fell below an “objective standard of

reasonableness”; and (2) “a reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been different”

Strickland, 466 U.S. at 693–94. In the plea context, more specifically, Botelho

must show that, but for counsel’s errors, she would not have pleaded guilty and

would have insisted on going to trial. Hill, 474 U.S. at 58–59. The court need

only consider one of these requirements if it is dispositive of the claim. Strickland,

466 U.S. at 687. Because Botelho has not made a showing of prejudice, we need

not address the alleged deficiencies of counsel’s performance. Id. at 700.




                                           2
      Based on the record, there is no reasonable probability that Botelho would

not have pleaded guilty or would have gone to trial absent her prior attorney’s

advice. First, the district court’s two separate adverse credibility findings fatally

undermine Botelho’s current claim. Second, other than her incredible testimony,

Botelho offers little evidence to show she relied on her attorney’s advice about

cooperation when deciding to enter her plea. Thus she cannot show with a

reasonable probability that but for the advice she would not have pleaded guilty

and would have gone to trial.

      Botelho’s claim that she would have gone to trial is also undermined by her

own testimony: “I mean, it could have been the same thing. I could have gotten 20

years, which I did. . . . [Or] [p]robably a little bit above that.” Her statement

makes clear that Botelho did not believe that going to trial would result in a better

outcome than her plea, contradicting her current claim.

      Botelho also claims that there was no reason for her to plead because all she

received as a benefit from the plea was the statutory minimum—the same sentence

she could have received had she gone to trial and been convicted. However, even

without the benefit of a downward departure reduction, Botelho benefitted from the

plea agreement. The government dismissed another count and, pursuant to the plea

agreement, Botelho received a three-level downward adjustment in her base


                                           3
criminal offense level for her timely acceptance of responsibility. Because Botelho

cannot show that she suffered prejudice, her ineffective assistance of counsel claim

fails, and the district court properly denied habeas relief.

      AFFIRMED.




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