                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 21 2013

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-57001

              Plaintiff - Appellee,              D.C. Nos.    2:10-cv-02588-CAS
                                                              2:07-cr-0847-CAS-1
  v.

PEDRO PENA, AKA Dizzy, AKA Seal,                 MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                           Submitted October 7, 2013**
                              Pasadena, California

Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.




        *
             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).
      Pedro Pena appeals the district court’s denial of his 28 U.S.C. § 2255 motion

to vacate his 130-month sentence for distribution of methamphetamine. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1

      Pena argues that his trial and appellate counsel were ineffective when they

failed to object to the base offense level used at sentencing. He argues that counsel

should have objected because that level was derived, in part, from a dismissed

count. We review ineffective assistance of counsel claims and the denial of a 28

U.S.C. § 2255 motion de novo. United States v. Manzo, 675 F.3d 1204, 1209 (9th

Cir. 2012). To demonstrate ineffective assistance of counsel, Pena must show that

counsel’s representation fell below an objective standard of reasonableness and

that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687–88

(1984).

      Pena’s trial counsel’s failure to object to the base offense level and his

appellate counsel’s failure to raise the issue on appeal was not unreasonable

because any objection would have been without merit. See Shah v. United States,

878 F.2d 1156, 1162 (9th Cir. 1989) (“The failure to raise a meritless legal

argument does not constitute ineffective assistance of counsel.”) (quoting

      1
         We decline to address the issues Pena raises that were not included in the
Certificate of Appealability, as they were not present in the original § 2255 petition
and may not be raised for the first time here. See United States v. Keller, 902 F.2d
1391, 1395 (9th Cir. 1990) (citing Egger v. United States, 509 F.2d 745, 749 (9th
Cir.), cert denied, 423 U.S. 842 (1975)).
Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982)). Before sentencing,

Pena signed a plea agreement in which he stipulated to a base offense level of 32

—a level that reflected, in part, the drugs he was charged with distributing in the

dismissed count. At sentencing, the district court advised Pena of the sentencing

range and adopted 32 as the base offense level in accordance with the plea

agreement. Because Pena had agreed to this base offense level and sentences such

as Pena’s may be based on “relevant conduct,” see U.S.S.G. § 1B1.3(a)(2), there

was no basis for trial counsel to object and no basis for appellate counsel to raise

the issue on appeal.

      AFFIRMED.
