                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 20 2013

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

UNITED STATES OF AMERICA,                        No. 12-35353

              Plaintiff - Appellee,              D.C. Nos.    1:09-cv-00111-RFC
                                                              1:07-cr-00086-RFC-1
  v.

GULMARO TORRES-LEON,                             MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                Richard F. Cebull, Senior District Judge, Presiding

                          Submitted December 4, 2013**
                              Seattle, Washington

Before: O’CONNOR, Associate Justice (Ret.),*** and TALLMAN and BEA,
Circuit Judges.




        *
             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).
        ***
          The Honorable Sandra Day O’Connor, Associate Justice (Ret.) for the
Supreme Court of the United States, sitting by designation.
      Appellant Gulmaro Torres-Leon appeals the denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence for conspiracy to distribute

methamphetamine. For the following reasons, we affirm.

      1. Montana trial counsel was not ineffective under Strickland v.

Washington, 466 U.S. 668 (1984) and Hill v. Lockhart, 474 U.S. 52 (1985) in

failing to pursue a Fifth Amendment double jeopardy defense. The district court

correctly found that there was not enough evidence of a single conspiracy to

support a reasonable attorney in recommending trial over a guilty plea, especially

with the risk of a longer prison sentence. Instead, the evidence showed at least two

conspiracies, occurring at different times and in different places, and involving

different persons, methods, roles, and acts. See Arnold v. United States, 336 F.2d

347 (9th Cir. 1964); United States v. Ziskin, 360 F.3d 934 (9th Cir. 2003).

      2. Even if trial counsel had erred, Appellant would not meet his burden to

prove a “reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.

      3. The government did not violate Brady v. Maryland, 373 U.S. 83 (1963)

when it redacted information from investigation documents. The redacted

information did not raise a meritorious double jeopardy defense, and therefore was

not sufficiently material or exculpatory to establish a Brady claim.


                                          2
AFFIRMED.




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