                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 15 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   14-50451

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00889-GHK-2
 v.

JUAN GABRIEL ANGULO-CABRERA,                     MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   14-50496

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00889-GHK-3
 v.

SERGIO MERCADO-VAZQUEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                          Submitted November 9, 2016**
                              Pasadena, California

Before: SCHROEDER and BYBEE, Circuit Judges, and SMITH,*** Chief District
Judge.

      Defendants in this consolidated case were both sentenced for their respective

roles in a thirty-pound methamphetamine transaction. Defendant Angulo-Cabrera

appeals his sentence on the ground that he received ineffective assistance of

counsel (“IAC”) during the sentencing proceedings. Defendant Mercado-Vazquez

challenges the district court’s denial of safety-valve relief from mandatory-

minimum sentencing under 18 U.S.C. § 3553(f) as well as the district court’s

decision not to sua sponte order an evidentiary hearing to judge his credibility

during those proceedings. We have jurisdiction under 28 U.S.C. § 1291, dismiss

Angulo’s IAC claim with prejudice, and affirm Mercado’s sentence.

A.    Angulo-Cabrera

      Angulo claims that it was deficient for his counsel to “unnecessarily concede

that there were more members in the criminal conspiracy” because doing so

undermined the Probation Office’s recommended downward variance. Under


      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable William E. Smith, United States Chief District Judge
for the District of Rhode Island, sitting by designation.
                                          2
Strickland v. Washington, 466 U.S. 668 (1984), there is a two-prong test for

establishing an IAC claim: (1) deficient assistance of counsel and (2) prejudice as

a result. Id. at 687. Because Angulo failed to establish the first prong, we need not

reach the second.

      We generally do not review challenges to the effectiveness of defense

counsel on direct appeal and instead prefer challenges in habeas proceedings. See,

e.g., United States v. McGowan, 668 F.3d 601, 605 (9th Cir. 2012). There are two

“extraordinary exceptions to this general rule: (1) where the record on appeal is

sufficiently developed to permit determination of the issue, or (2) where the legal

representation is so inadequate that it obviously denies a defendant his Sixth

Amendment right to counsel.” Id. (quoting United States v. Jeronimo, 398 F.3d

1149, 1156 (9th Cir. 2005)). The present case falls under the first exception.

      Under a “most deferential” standard, starting with the “‘strong presumption’

that [Angulo’s] counsel’s representation was within the ‘wide range’ of reasonable

professional assistance,” we find that Angulo’s counsel’s representation did not

“amount[] to incompetence.” Harrington v. Richter, 562 U.S. 86, 104–05 (2011)

(quoting Strickland, 466 U.S. at 689). Instead, it is clear from the record that

Angulo’s counsel was pursuing a reasonable strategy designed to minimize

Angulo’s role in the conspiracy by painting him as a minion of higher-ups, rather


                                           3
than as a drug kingpin for whom a harsh sentence may be warranted. See Miles v.

Ryan, 713 F.3d 477, 487 (9th Cir. 2013) (denying an IAC claim because defense

counsel’s sentencing argument “appear[ed] to have been motivated by reasonable

strategic concerns”). Because Angulo’s counsel followed a valid litigation

strategy, we dismiss his IAC claim with prejudice.

B.    Mercado-Vazquez

      Mercado appeals his 120-month sentence on the grounds that he was

improperly denied safety-valve relief and that the district court should have sua

sponte granted an evidentiary hearing to judge his credibility before ruling that his

safety-valve proffers were untruthful and incomplete.

      To be eligible for safety-valve relief under 18 U.S.C. § 3553(f), a defendant

bears the burden of proving by a preponderance of the evidence that he meets five

criteria. United States v. Diaz-Cardenas, 351 F.3d 404, 408–09 (9th Cir. 2003).

The district court held that Mercado failed the last criterion to “truthfully provide[]

to the Government all information and evidence the defendant has concerning the

offense.” 18 U.S.C. § 3553(f)(5). This factual determination is reviewed for clear

error. United States v. Shrestha, 86 F.3d 935, 938 (9th Cir. 1996).

      The district court did not clearly err in making this factual determination and

denying safety-valve relief. The district court based its decision on the provable


                                           4
falsity of Mercado’s explanation for why he did not hear or see anything at the

drug meeting in question in combination with logical inferences drawn from an

agent’s statements that Mercado participated and the proximity of Mercado to the

transaction. This was not clear error. See United States v. Hieng, 679 F.3d 1131,

1145 (9th Cir. 2012) (finding a reasonable inference that the defendant must have

known more than he shared with the government a permissible ground to deny

relief).

       Mercado further claims that the district court erred by not sua sponte

ordering an evidentiary hearing to judge his credibility. This decision is reviewed

for plain error. United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001). Because

the district court’s findings were based on the objective falsehood of Mercado’s

statement and Mercado was given ample opportunity to contest the district court’s

findings, the district court did not plainly err. See United States v. Real-

Hernandez, 90 F.3d 356, 362 (9th Cir. 1996) (noting that when a factual issue is in

dispute in a safety-valve application, the district court need only “provide the

parties a ‘reasonable opportunity’ to present information to the court” (quoting

Fed. R. Crim. P. 32(c)(3)(A))).

                                         ***




                                           5
     Angulo-Cabrera’s IAC claim is DISMISSED WITH PREJUDICE, and

Mercado-Vazquez’s sentence is AFFIRMED.




                                  6
