                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 20 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10446

                Plaintiff-Appellee,             D.C. No.
                                                1:17-cr-00710-SOM-1
 v.

MATTHEW BERCKMANN,                              MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Hawaii
                   Susan O. Mollway, District Judge, Presiding

                        Argued and Submitted July 8, 2020
                                Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

      Defendant-Appellant Matthew Berckmann appeals from his convictions for

assault with a dangerous weapon, a violation of 18 U.S.C. § 113(a)(3), and assault

of a spouse by strangulation, a violation of 18 U.S.C. § 113(a)(8). Berckmann

argues: (1) the district court improperly admitted evidence under Federal Rule of

Evidence 404(b); (2) his conviction on Count 2, assault of a spouse by



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
strangulation, was not supported by sufficient evidence; (3) defense counsels’

assistance was ineffective; and (4) his 41-month within-Guidelines sentence was

substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291. As the

parties are familiar with the facts, we do not recount them here. We affirm.1

       1.    The relevant question on a sufficiency of the evidence challenge is

“whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Krouse, 370 F.3d 965, 967 (9th Cir.

2004) (internal quotation marks, emphasis and citation omitted). Here, taking the

testimony of multiple eyewitnesses in the light most favorable to the prosecution, a

rational trier of fact could have determined that Berckmann “intentionally,

knowingly, or recklessly imped[ed] the normal breathing or circulation of the

blood of a person by applying pressure to the throat or neck.” 18 U.S.C.

§ 113(b)(4). As such, the evidence was sufficient to support the jury’s finding on

Count 2.

       2.    Successful claims of ineffective assistance of counsel must

demonstrate: (1) that counsel’s performance “fell below an objective standard of

reasonableness”; and (2) prejudice stemming from any deficiencies in




1
    We resolve Berckmann’s Rule 404(b) arguments in a concurrently filed opinion.

                                          2
performance.2 Elmore v. Sinclair, 799 F.3d 1238, 1248-49 (9th Cir. 2015) (quoting

Strickland v. Washington, 466 U.S. 668, 688 (1984)). Generally, we “defer to trial

counsel’s strategic decisions . . . based on an adequate inquiry.” Correll v. Ryan,

539 F.3d 938, 948 (9th Cir. 2008) (quotation marks omitted).

      Here, defense counsels’ performance did not fall below an “objective

standard of reasonableness,” id. at 942, as counsel made a “reasonable tactical

choice” not to call Berckmann’s wife to testify based on the circumstances of the

case. Id. at 948 (internal quotation marks and citation omitted). His wife’s recall

was inconsistent and lacked sufficient detail, and her testimony ran the risk of

opening the door to harmful expert testimony (that defense counsel had otherwise

convinced the trial court to exclude) and to further evidence of other attacks.

Additionally, Berckmann failed to demonstrate prejudice stemming from defense

counsels’ decision. See Harrington v. Richter, 562 U.S. 86, 104 (2011). Thus,

Berckmann was not deprived of effective assistance of counsel.3


2
  While ineffective assistance of counsel claims are generally raised in post-
judgment habeas corpus proceedings, such a claim may be reviewed on direct
appeal when “the record on appeal is sufficiently developed to permit
determination of the issue.” United States v. Rahman, 642 F.3d 1257, 1259-60
(9th Cir. 2011). Such is the case here.
3
  Berckmann also argues that reversal is required due to the cumulative effect of
the alleged errors. See United States v. Inzunza, 638 F.3d 1006, 1024 (9th Cir.
2011) (“Even if no error individually supports reversal, the cumulative effect of
numerous errors may support reversal”) (citation omitted). Here, however, we find
no error. Thus, Berckmann’s argument fails.

                                          3
      3.     We review the “substantive reasonableness” of a sentence for abuse of

discretion. United States v. Vasquez-Perez, 742 F.3d 896, 901 (9th Cir. 2014).

Here, considering the totality of the circumstances and the sentencing factors set

forth in 18 U.S.C. § 3553(a), the district court’s 41-month within-Guidelines

sentence is not unreasonable. See United States v. Apodaca, 641 F.3d 1077, 1082

(9th Cir. 2011).

      AFFIRMED.




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