                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 17 2010

                                                                        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. 08-10561

              Plaintiff - Appellee,              D.C. No. 2:98-CR-00365-RCC-
                                                 BPV-1
  v.

SAN JUAN HERNANDEZ,                              MEMORANDUM *

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-10581

              Plaintiff - Appellee,              D.C. No. 4:07-CR-01581-RCC-
                                                 BPV
  v.

SAN JUAN HERNANDEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                     Argued and Submitted November 2, 2010
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ and BEA, Circuit Judges, and DUFFY, District Judge.**

      San Juan Hernandez appeals the 134-month sentence imposed following his

guilty pleas to conspiring with intent to distribute and possessing with intent to

distribute 132 kilograms of marijuana; and admitting a violation of the terms of his

supervised release. Hernandez argues that his sentence must be vacated because he

received prejudicial ineffective assistance of counsel at sentencing. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review de novo claims of ineffective assistance of counsel. United

States v. Mack, 164 F.3d 467, 471 (9th Cir. 1999). Hernandez’s ineffective

assistance claim is appropriate for direct review because the claim exclusively

relies on statements made in court by Hernandez’s attorney, which are contained in

the transcript of the sentencing hearing. See United States v. Swanson, 943 F.2d

1070, 1072 (9th Cir. 1991).

      To succeed on an ineffective assistance of counsel claim, a defendant must

demonstrate that: (1) “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment;”

and (2) “the deficient performance prejudiced the defense.” Strickland v.


       **
             The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.

                                           2
Washington, 466 U.S. 668, 687 (1984). Because we conclude that Hernandez’s

attorney did not prejudice the defense, we need not consider whether counsel’s

performance was deficient. See Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir.

2000).

         To establish prejudice, a defendant must “show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. A

“reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

         We first assume without deciding that Hernandez’s attorney performed

incompetently in emphasizing the medical benefits of incarceration. This error,

however, did not prejudice Hernandez. In sentencing Hernandez at the low end of

the advisory Sentencing Guidelines, the judge explicitly stated that the sentence

was designed to protect society from Hernandez in light of Hernandez’s criminal

history. The judge also stated that the likelihood that Hernandez would receive

necessary medical treatment in prison was not a dispositive factor for determining

his sentence. Given Hernandez’s extensive criminal record, he has not

demonstrated a reasonable probability that, but for counsel’s statements about the




                                            3
benefits of incarceration, the result of the sentencing proceeding would have been

different.

       AFFIRMED.




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