                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 19 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-16433

              Plaintiff - Appellee,              D.C. Nos.    2:09-cv-00739-GEB-
                                                 GGH
  v.                                                          2:02-cr-00418-GEB-
                                                 GGH-3
ANTELMO ONTIVERAS,

              Defendant - Appellant.             MEMORANDUM*


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Garland E. Burrell, District Judge, Presiding

                          Submitted November 5, 2012**
                            San Francisco, California

Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.

       Antelmo Ontiveras appeals the denial of his 28 U.S.C. § 2255 motion to

vacate his conviction and sentence for conspiracy to possess and possession of,

with intent to distribute, methamphetamine in violation of 21 U.S.C. §§ 846 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).
841(a)(1). He alleges that his trial counsel rendered ineffective assistance by (1)

failing to make a motion for acquittal based on insufficiency of the evidence

pursuant to FED. R. CRIM. P. 29 and (2) not advising Ontiveras of his option to

plead guilty without a plea.

      There is no basis for a conclusion that trial counsel rendered ineffective

assistance. We have reviewed the record, and it leaves no doubt that Ontiveras

committed sufficient acts to be charged as a part of the conspiracy to possess and

possession of, with intent to distribute methamphetamine under 21 U.S.C. §§ 846

and 841(a)(1). See United States v. Herrera-Gonzalez, 263 F.3d 1095 (9th Cir.

2001). Counsel’s failure to make a Rule 29 motion therefore was neither deficient

nor prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).

       On this record, it is clear that Ontiveras would not have entered a guilty

plea. Therefore counsel did not prejudice Ontiveras’ trial by failing to discuss

various pleading possibilities. Id.

      The magistrate judge issued findings and recommendations to deny the §

2255 motion in its entirety. The District Court adopted that position in full on

March 26, 2010.

      We find nothing in the record to justify reversal.

      AFFIRMED.


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