                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 13 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50071

              Plaintiff - Appellee,              D.C. No. 5:07-cr-00028-VAP-2

  v.
                                                 MEMORANDUM*
JOHN RICHARD VARNER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                            Submitted March 7, 2013**
                               Pasadena, California

Before: THOMAS and HURWITZ, Circuit Judges, and BEISTLINE, Chief
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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
      Defendant-Appellant John Varner was convicted on four counts of

conspiracy and tax fraud. Varner appeals his conviction, arguing that the trial

court erred in failing to give the jury an accomplice instruction sua sponte and that

counsel’s failure to request the instruction constituted ineffective assistance.

      A district court’s failure to give a jury instruction sua sponte is reviewed for

plain error. United States v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991). Because

we have held that “where an accomplice instruction is not requested, it is not plain

error not to give one sua sponte,” United States v. Gere, 662 F.2d 1291, 1295 (9th

Cir. 1981), Varner’s first argument fails.

      Nor was counsel’s failure to request the instruction ineffective assistance.

On the record before us, we conclude that defense counsel’s conduct “falls within

the wide range of reasonable professional assistance.” Strickland v. Washington,

466 U.S. 668, 689 (1984).

             The judgment is AFFIRMED.
