                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         DEC 26 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

JUAN CARLOS RODRIGUEZ, AKA Joel                  No.    17-56680
Castillo, AKA Shorty,
                                                 D.C. Nos.    2:16-cv-05987-MWF
                Petitioner-Appellant,                         2:13-cr-00542-MWF-4

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                      Argued and Submitted October 15, 2019
                               Pasadena, California

Before: WARDLAW and COLLINS, Circuit Judges, and SETTLE,** District
Judge.

      Juan Carlos Rodriguez (“Rodriguez”) appeals the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate his 2015 conviction and sentence for

conspiracy to possess with intent to distribute and to distribute at least 50 grams of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. We have

jurisdiction under 28 U.S.C. § 2253. The district court did not err when it

summarily denied Rodriguez’s motion. Therefore, we affirm.1

      The district court did not err when it denied Rodriguez’s motion for lack of

prejudice. Womack v. Del Papa, 497 F.3d 998, 1001 (9th Cir. 2007) (reviewing

the district court’s denial of a section 2255 motion de novo). Rodriguez contends

that his guilty plea was not voluntary because his lawyer misrepresented that his

federal sentence would run entirely concurrently with a state sentence he was

already serving based on the same criminal acts. “[A] defendant who pleads guilty

upon the advice of counsel may only attack the voluntary and intelligent character

of the guilty plea by showing that the advice he received from counsel” constituted

ineffective assistance—that is, that the advice constituted deficient performance

and prejudiced the defense. Hill v. Lockhart, 474 U.S. 52, 56 (1985); see also id.

at 58–59.

       Even if Rodriguez’s attorney did represent that the two sentences would run

entirely concurrently, Rodriguez fails to demonstrate that he was prejudiced by this

advice. Womack, 497 F.3d at 1003 (citing Doganiere v. United States, 914 F.2d

165, 168 (9th Cir. 1990) (holding prejudice not established when the plea



      1
       In addition, the government’s unopposed motion to supplement the record
on appeal, Docket No. 23, is granted.

                                         2                                    17-56680
agreement and plea colloquy “alerted [the defendant] to the potential consequences

of his guilty plea”)). The district judge advised Rodriguez during the Rule 11 plea

colloquy that he was not guaranteed a concurrent sentence and that it was “up in

the air how any federal sentence might run” with the state sentence. Accordingly,

he fails to demonstrate the requisite prejudice.

      Rodriguez’s argument that his plea agreement was vague and misleading

because it failed to specify a date when the “undischarged portion” of the sentence

would begin to run does not change this result. A federal sentence begins to run no

earlier than the date it is imposed. See 18 U.S.C. § 3585(a). In this case, the

district court imposed Rodriguez’s sentence on August 6, 2015, which became the

operative date for the Bureau of Prisons (“BOP”) to determine the remaining, or

undischarged, portion of his state sentence.2 Moreover, the district judge informed

Rodriguez at sentencing that the BOP would determine the credit he would receive

for the state sentence, and Rodriguez did not object or seek to withdraw his plea.

      For these same reasons, the district court did not abuse its discretion in



      2
         Rodriguez’s attorney did successfully move to continue the sentencing
hearing five times, which had the practical effect of increasing the length of his
overall incarceration by delaying the date on which his federal sentence would
begin to run concurrently with the state sentence he was then serving. However, in
his motion Rodriguez did not allege ineffective assistance based on his attorney’s
decisions to continue the hearing, and the record reveals that the attorney
reasonably requested most of the continuances to determine Rodriguez’s eligibility
for statutory sentencing relief.

                                          3                                    17-56680
denying Rodriguez’s petition without an evidentiary hearing; the record

conclusively shows that Rodriguez cannot establish prejudice. Doganiere, 914

F.2d at 168.

      AFFIRMED.




                                        4                                 17-56680
