                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 15 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30136

              Plaintiff - Appellee,              D.C. No. 2:13-cr-02134-TOR-1

 v.
                                                 MEMORANDUM*
JOSE MANUEL BIRRUETA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Thomas O. Rice, District Judge, Presiding

                             Submitted July 6, 2015**
                               Seattle, Washington

Before: KLEINFELD, NGUYEN, and FRIEDLAND, Circuit Judges.

      Jose Birrueta appeals his convictions for possession with intent to distribute

methamphetamine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and for possession

of an unregistered firearm under 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871. We

        *
             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).
have jurisdiction under 28 U.S.C. § 1291. Reviewing Birrueta’s claim of

ineffective assistance of counsel de novo, United States v. Labrada-Bustamante,

428 F.3d 1252, 1260 (9th Cir. 2005), we affirm without prejudice to collateral

review.

      Birrueta claims that his trial counsel was ineffective because he failed to file

a motion to suppress evidence from a warrantless search of a shed that Birrueta

leased from his neighbor. However, we generally do not review an ineffective

assistance of counsel claim on direct appeal, except under narrow circumstances.

See United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003) (stating that

“[c]laims of ineffective assistance of counsel are generally inappropriate on direct

appeal” and should normally be raised in habeas corpus proceedings). The two

exceptions to this rule are “(1) when the record on appeal is sufficiently developed

to permit review and determination of the issue, or (2) when the legal

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

Amendment right to counsel.” Id. (quoting United States v. Ross, 206 F.3d 896,

900 (9th Cir. 2000)). Birrueta’s case does not fall in either category.

      Birrueta claims that the record here is sufficiently developed to establish

counsel’s ineffectiveness. He argues that because the officers knew that he rented

the shed, and he neither consented to the search nor abandoned his property interest


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in the shed, counsel should have filed a motion to suppress the evidence found in

the shed. He suffered prejudice, Birrueta’s argument goes, because he would have

prevailed on the motion. The government, on the other hand, argues that Birrueta’s

statements to the police evidenced his abandonment of any interest in the shed, and

thus the warrantless search was constitutional. See United States v. Nordling, 804

F.2d 1466, 1469 (9th Cir. 1986) (“[P]ersons who voluntarily abandon property lack

standing to complain of its search or seizure.”).

      We conclude that resolution of Birrueta’s ineffective assistance of counsel

claim is more appropriate on collateral review than on direct appeal. In

determining whether a person has abandoned an interest in property, we look at

whether he or she, “through words, acts or other objective indications, . . . has

relinquished a reasonable expectation of privacy in the property[.]” Id. Here, the

parties do not agree on what Birrueta said, through a Spanish-speaking officer,

prior to the search, and thus the record is not “sufficiently developed to permit

review and determination of the issue.” McKenna, 327 F.3d at 845.

      Moreover, even assuming that Birrueta did not abandon his interest in the

shed, Birrueta may not be able to prove that his counsel’s failure to file a

suppression motion “was unreasonable under prevailing professional norms” and

“not sound strategy,” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986), because


                                          3
his counsel may have had reasonable strategic reasons for not challenging the

search. Birrueta asserts that he could have testified at the hearing on his motion to

establish standing. See Simmons v. United States, 390 U.S. 377, 390-91 (1968)

(noting that where a defendant’s Fourth Amendment standing is in dispute, he may

testify at a suppression hearing that he owns the disputed property). However,

counsel may have had strategic reasons not to file a suppression motion to avoid

having Birrueta testify. For example, testifying at the suppression hearing may

have impacted his ability to disassociate himself from the drugs in the shed at

trial—a defense that he in fact presented. See United States v. Beltran-Gutierrez,

19 F.3d 1287, 1289-90 (9th Cir. 1994). The record is silent as to counsel’s

reasoning in opting not to file the motion, so this issue is a more appropriate

subject for collateral review, where the record could be further developed.

      AFFIRMED.




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