                              NOT FOR PUBLICATION                        FILED
                       UNITED STATES COURT OF APPEALS                    OCT 19 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   17-15129

                Plaintiff-Appellee,              D.C. No.
                                                 3:12-cr-00111-EMC-1
 v.

WILLIAM J. WISE,                                 MEMORANDUM *

                Defendant-Appellant.

                      Appeal from the United States District Court
                         for the Northern District of California
                       Edward M. Chen, District Judge, Presiding

                              Submitted October 17, 2018**
                                San Francisco, California

Before: HAWKINS, HURWITZ, Circuit Judges, and EATON, Judge.***

      William Wise pleaded guilty to various charges arising out of his involvement

in a Ponzi scheme, including mail fraud, wire fraud, and money laundering. Wise



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.

                                             1
received a prison sentence of 262 months, at the bottom of the applicable Sentencing

Guidelines range. He then filed a 28 U.S.C. § 2255 motion arguing that (1) the

government had breached his plea agreement by not making a motion for a

downward adjustment under U.S.S.G. § 5K1.1 in light of his cooperation, and (2) he

received ineffective assistance of counsel.

      After the district court denied the motion, we issued a certificate of

appealability (“COA”) on these two issues, and this timely appeal followed. We

have jurisdiction under 28 U.S.C. § 2253 and affirm.

      1. The district court did not err in concluding that Wise’s breach argument

failed. The plea agreement unambiguously stated that the government had sole

discretion to decide to file a § 5K1.1 motion. It also stated that Wise had been made

no promises not set forth in the agreement, required any modification of the

agreement to be in writing, and contained an integration clause. At the change of

plea hearing, Wise confirmed that he understood the agreement, and that no promises

had been made to him “other than what is in the agreement.” The court reminded

Wise that, “[t]he agreement does provide that the defendant may seek a downward

departure under [§ 5K1.1]. And that matter will be considered and decided upon

with respect to any such motions by the United States Attorney’s Office.” The court

also notified Wise that “if I decide to impose a sentence that is different than what

you expect, including a sentence more severe than what you expected, then you


                                              2
would not be able to withdraw that guilty plea.”

      After Wise pleaded guilty, but before sentencing, his counsel notified the

court that Wise sought to withdraw the plea and had expressed concern over

counsel’s competence with regard to § 5K1.1 motions. In response, the court

appointed a second lawyer to advise him on these issues. After consulting with that

attorney, Wise decided to not withdraw his plea.

      Wise received the government’s sentencing memorandum, stating that it did

not intend to make a § 5K1.1 motion, seven days before sentencing. Wise did not

object to that decision in his subsequently filed sentencing memorandum, or at

sentencing, where he was represented both by his original attorney and the second

court-appointed counsel. Indeed, at sentencing, Wise’s counsel expressly stated that

“I don’t think at this point that we should necessarily look behind the decision not

to do the 5K.” And, in allocution, Wise made no mention of any government

promise.1

      2.    The district court also did not err in finding that Wise had not

established that he received ineffective assistance of counsel because his original

attorney allegedly failed to advise him that the government might not make a § 5K1.1


1
       The government argues that Wise’s § 2255 arguments about breach of the plea
agreement were barred by a collateral attack waiver in the plea agreement, and were
also procedurally defaulted. The district court pretermitted these arguments, and we
do not find it necessary to reach them.


                                            3
recommendation. As the district court noted, even if that allegation were true, Wise

did not demonstrate the required prejudice. See Strickland v. Washington, 466 U.S.

668, 687 (1984) (“[T]he defendant must show that the deficient performance

prejudiced the defense.”). Before surrendering, Wise entered into an agreement with

the government that expressly contemplated a guilty plea, and the attorney about

whose effectiveness he now complains did not represent him in negotiating the

surrender agreement. 2    The district court correctly found that Wise could not

establish that he would have not pleaded guilty in the absence of any alleged

ineffectiveness.

      Nor did the district court err in holding that Wise had failed to demonstrate

that, in the absence of any ineffective assistance, the government would have

offered, or the court would have accepted, a more favorable plea agreement. The

district court noted that it “has never seen in this District a plea deal under which the

government guarantees the criminal defendant that it will file a 5K motion.” It also

stated that because Wise was sentenced to the bottom of his sentencing range, “[t]he

only better plea deal would be one under which Mr. Wise would get a below-

Guidelines sentence. Mr. Wise has not made any allegations or offered any evidence

that the government would have offered a below-Guidelines sentence.” Finally, the

court observed, “Mr. Wise has not shown there is any reasonable probability that the


2
      Wise does not complain about the effectiveness of his other counsel.

                                               4
Court would have accepted such a deal that would have guaranteed a below-

Guidelines sentence.”

      AFFIRMED.




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