                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 24 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-35504

              Plaintiff - Appellee,              D.C. Nos.    6:11-cv-70004-HO
                                                              6:07-cr-60015-HO
  v.

THOMAS WESLEY BOREN,                             MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                              Submitted July 8, 2013**
                                 Portland, Oregon

Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.

       Thomas Boren appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his 120-month sentence. Boren contends that

his counsel was ineffective during plea bargaining. See Lafler v. Cooper, 132 S.


        *
             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).
Ct. 1376, 1384 (2012). We review denial of a 28 U.S.C. § 2255 motion and the

effectiveness of counsel de novo. United States v. Manzo, 675 F.3d 1204, 1209

(9th Cir. 2012).

      To demonstrate ineffective assistance of counsel, Boren must show: (1)

counsel’s representation fell below an objective standard of reasonableness; and (2)

prejudice. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The two-part

Strickland test applies to claims of ineffective assistance of counsel during plea-

bargaining. Lafler, 132 S. Ct. at 1384.

       Counsel’s advice that Boren reject the April 2006 offer was not

unreasonable because counsel had not had an opportunity to inspect the hard drive

on Boren’s computer and it was possible that there were fewer images on the hard

drive than the government alleged. Moreover, the record indicates that counsel

could not have realistically accessed the hard drive during the narrow window the

April 2006 offer was subject to acceptance. Counsel’s affidavit clearly sets forth

that he was aware of both the distribution component of the case and the specific

distribution enhancement pursuant to United States Sentencing Guidelines

§ 2G2.2(b)(3)(B).

      Counsel’s theory that a defendant does not “possess” images that were

deleted before the date of the alleged possession finds support in subsequent case


                                           2
law. See United States v. Flyer, 633 F.3d 911, 919–920 (9th Cir. 2011). It was

therefore not unreasonable for counsel to advance that theory. Nor was it

unreasonable for counsel to challenge enhancements for material portraying

sadistic or masochistic conduct, U.S. Sentencing Guidelines Manual § 2G2.2(b)(4),

or distribution, id. § 2G2.2(b)(3)(B), despite the evidence that supported those

enhancements.

      Even if counsel’s performance had fallen below an objective standard of

reasonableness, Boren is unable to demonstrate that the government would not

have withdrawn the offer or that the court would have accepted it. See Lafler, 132

S. Ct. at 1385. “A plea agreement that has not been entered and accepted by the

trial court does not bind the parties.” United States v. Fagan, 996 F.2d 1009, 1013

(9th Cir. 1993) (emphasis added). Later correspondence from the government

indicated that the government “overlooked” the distribution enhancement when it

presented the April 2006 offer.

      Because the April 2006 offer contemplated that Boren’s guilty plea would be

entered pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), the

government’s recommended sentence would not have been binding on the district

court. In light of the strong evidence that the distribution enhancement applied,

and the pre-sentence report’s discussion and recommendation that the enhancement


                                          3
be applied, Boren cannot show that the district court would have accepted the April

2006 proposed agreement.

      Boren’s argument that he was prejudiced by the government’s presentation

at sentencing does not bear on the effectiveness of counsel during plea bargaining,

which was the only issue certified for appeal.

      AFFIRMED.




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