                                                                             FILED
                              NOT FOR PUBLICATION                            DEC 03 2009

                                                                       MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                   U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                          No. 08-10514

             Plaintiff - Appellee,                 D.C. No. CR-08-01119-PJH

  v.                                               MEMORANDUM *

ARSENIO HUQUERIZA,

             Defendant - Appellant.




                      Appeal from the United States District Court
                         for the Northern District of California
                      Phyllis J. Hamilton, District Judge, Presiding

                              Submitted November 3, 2009 **
                                San Francisco, California

Before: GOODWIN and W. FLETCHER, Circuit Judges, and MILLS, *** District
Judge.


       *
            This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
       **
            The panel unanimously finds this case suitable for decision without
oral argument pursuant to Federal Rules of Appellate Procedure 34(a)(2).

       ***
             The Honorable Richard Mills, United States District Judge for
the Central District of Illinois, sitting by designation.
      Arsenio Huqueriza appeals the 63-month sentence that the district court

imposed following his guilty plea to one count of possession of child pornography,

in violation of 18 U.S.C. § 2252(a)(4)(B). Huqueriza claims that the prosecutor

committed misconduct by engaging in an improper ex parte communication. He also

alleges that his due process rights were violated when the judge viewed the images

without granting him a hearing. Huqueriza further asserts that counsel’s performance

was deficient for failing to raise these issues at his sentencing hearing. We affirm.

                                           I.

      Because the issue of prosecutorial misconduct is raised for the first time on

appeal, it is reviewed for plain error. See United States v. Tarazon, 989 F.2d 1045,

1051 (9th Cir. 1993). Huqueriza argues that the prosecutor engaged in an improper

ex parte communication by encouraging the district judge to view the images before

imposing sentence. The record establishes that defense counsel was listed on the “cc”

line of the letter to the judge. The letter was dated October 27, 2008, and received by

counsel no later than October 30.       There was, at most, a slight delay in the

transmission of the letter to counsel. Even if this had been prosecutorial misconduct

(a question we do not reach), it was harmless. It is clear from the record that the

district judge did not view the images until after defense counsel received the letter,

and, in any event, there is no evidence that viewing the images had any particular



                                           2
effect on Huqueriza’s sentence. In fact, Huqueriza received a sentence lower than that

recommended in the pre-sentence report to which no one objected. Considering all

of this, Huqueriza cannot show prejudice.

                                           II.

      Huqueriza next contends that he was deprived of due process when he was not

afforded an opportunity to be heard on whether the judge would view the images that

Huqueriza admitted possessing. A decision by a district court to grant or deny an

evidentiary hearing is normally reviewed for abuse of discretion. See Estrada v.

Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008). The images in question appear to be

part of “the nature and circumstances of the offense” that the judge may consider in

sentencing, pursuant to 18 U.S.C. § 3553(a)(1). Accordingly, the district court did not

abuse its discretion.

                                           III.

      Huqueriza next contends that he received ineffective assistance of counsel when

no objection was raised to the viewing of the evidence at sentencing. We generally

do not review claims of ineffective assistance of counsel on direct appeal. See United

States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005). However, ineffective

assistance claims can be considered on direct appeal if the factual record is sufficiently

developed; such claims are reviewed de novo. United States v. Nickerson, 556 F.3d



                                            3
1014, 1018 (9th Cir. 2009).

      In order to show ineffective assistance of counsel, a defendant must show (1)

that his counsel’s performance was deficient and (2) that the deficiency prejudiced his

defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We are unable to

conclude that defense counsel’s performance was deficient. Counsel filed a lengthy

sentencing memorandum, wherein he identified mitigating factors and argued that a

probationary sentence was appropriate. Counsel arranged for Huqueriza and several

members of Huqueriza’s family to speak on his behalf. Although counsel did not

raise prosecutorial misconduct and due process claims at the sentencing hearing, those

claims would have been without merit for the reasons already noted.

      The second prong also cannot be met. Even if counsel had raised the claims,

the court likely would have viewed the evidence anyway, as it was entitled to do.

Based on her own statements, the judge likely would have imposed the same sentence

of 63 months imprisonment, which was nearly three years below the bottom of the

applicable Sentencing Guidelines range. Accordingly, Huqueriza would not be able

to show that he was prejudiced by any deficiency.

      AFFIRMED.




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