                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              NOV 02 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.    16-16112

              Plaintiff-Appellee,                 D.C. Nos.
                                                  1:15-cv-00402-JMS-KJM
 v.                                               1:10-cr-00055-JMS

GABRIEL RUIZ SALCEDO, AKA
Gabriel Salcedo-Ruiz, AKA Gabriel Ruiz            MEMORANDUM*
Salcido,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    J. Michael Seabright, Chief Judge, Presiding

                      Argued and Submitted October 10, 2017
                                Honolulu, Hawaii

Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

      Gabriel Salcedo appeals the denial of his 28 U.S.C. § 2255 motion to vacate,

set aside, or correct his life sentence for conspiracy to distribute and possess with

intent to distribute 50 grams or more of methamphetamine and attempt to possess



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
with intent to distribute 50 grams or more of methamphetamine, in violation of 21

U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 18 U.S.C. § 2.

Before trial, the government filed a special information pursuant to 21 U.S.C. §

851 listing two prior felony drug convictions that increased Salcedo’s sentence

from a mandatory minimum of ten years to life imprisonment. The district court

issued a certificate of appealability (“COA”) on one question stemming from

Salcedo’s ineffective assistance of counsel claim: “Whether Salcedo could have

prevented the Government from filing an Information pursuant to 21 U.S.C. § 851.

Put differently, if Salcedo had indicated a desire to enter a guilty plea before the

Government filed a § 851 Information, could he have entered that plea without

providing the Government time to file that Information.” We have jurisdiction

pursuant to 28 U.S.C. § 2253(c). We review a district court’s denial of a habeas

corpus petition de novo, and we affirm.

      To succeed on a claim of ineffective assistance, a habeas petitioner must

prove that his “counsel’s representation fell below an objective standard of

reasonableness,” and that there was “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).




                                           2
      Even assuming that counsel’s representation was deficient, Salcedo cannot

show a reasonable probability that, rather than proceeding to trial, he would have

pled guilty prior to the government filing a § 851 special information. With no

special information filed, Salcedo’s mandatory minimum would have been 10

years, with a guideline range of 292 to 365 months. Salcedo never contested the

district court’s findings that he was unwilling to take a sentence of more than 20

years and that he still wanted to proceed to trial after his attorneys advised him of

this range. Because Salcedo was never willing to take a sentence of more than 20

years and his minimum sentencing guideline range was well above 20 years,

Salcedo would have still proceeded to trial even if the government did not or could

not file a special information. Since Salcedo fails to demonstrate prejudice, we

need not resolve the temporal requirements of § 851.

      The district court did not err in denying Salcedo’s petition.

      AFFIRMED.




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