                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 26 2015

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

UNITED STATES OF AMERICA,                        No. 12-35979

              Plaintiff - Appellee,              D.C. Nos.    3:11-cv-06060-RBL
                                                              3:06-cr-05504-RBL-1
  v.

CHARLES NOLON BUSH,                              MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                           Submitted February 3, 2015**
                               Seattle Washington

Before: FISHER, BEA, and MURGUIA, Circuit Judges.

       Charles Nolon Bush appeals the district court’s denial of his 28 U.S.C. §

2255 motion to vacate, set aside, or correct his sentence. We review de novo, and




        *
             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).
we affirm. United States v. Daniels, 195 F.3d 501, 502 (9th Cir. 1999), aff’d, 532

U.S. 374 (2001).

      Bush claims that his counsel rendered ineffective assistance at sentencing

when she failed to object to the Presentence Report (“PSR”). The PSR relied on

statutory maximum sentences that had increased since the time of the offense

conduct, in violation of the Ex Post Facto clause.1 To prevail, Bush must show (1)

that “counsel’s representation fell below an objective standard of reasonableness”

and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Porter v. McCollum, 558 U.S.

30, 38 (2009) (quoting Strickland v. Washington, 446 U.S. 668, 688, 694 (1986)

(internal quotation marks omitted)).

      Bush cannot show a reasonable probability that, but for counsel’s failure to

object to the PSR, the result of the proceeding would have been different. At

sentencing, the district court stated the intention to sentence Bush to 30 years’

imprisonment, and to allocate the time served among Bush’s 27 counts of

conviction. Then, in its order denying Bush’s § 2255 motion, the district court


      1
        Bush also claims IAC because counsel did not object to the PSR’s use of
the wrong Sentencing Guidelines Manual on some of the counts, in violation of the
ex post facto clause. The question whether counsel was ineffective for failing to
object to the PSR on grounds that use of the Guidelines Manual violated the ex
post facto clause was not certified, and we decline to expand the certificate of
appealability.
found that “any objection would have been futile, as the Court would have simply

reapportioned the sentence. Thus, Bush was not prejudiced as a result of

[counsel]’s failure to object.” A district court judge considering a sentence that he

imposed may make findings as to his prior intention, and this court “must take such

statements at face value.” United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir.

1985). Therefore, regardless whether counsel rendered deficient performance

through her failure to object to the use of inapplicable statutory maximums, Bush

has not shown prejudice; i.e., a reasonable probability that his counsel’s failure to

object affected the result of the proceeding. AFFIRMED.
