                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 28 2013

                                                                        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. 10-55934

              Plaintiff - Appellee,              D.C. Nos. 2:08-cv-05267-WDK
                                                           2:06-cr-00216-WDK-1
    v.

ROBERT ROBINSON, AKA Bob Cool,                   MEMORANDUM *

              Defendant - Appellant.



                  Appeal from the United States District Court
                       for the Central District of California
                William D. Keller, Senior District Judge, Presiding

                           Submitted February 8, 2013 **
                              Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

      Robert Robinson timely raises five challenges to the denial of his § 2255

motion by the district court. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253, and we affirm.


         *
             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).
      Because Robinson’s original appellate counsel decided not to challenge the

use of the extrapolation method or the preponderance of the evidence standard on

direct appeal, his first two claims have been procedurally defaulted. See United

States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). Robinson does not attempt

to demonstrate cause and prejudice to excuse this default, as he must. United

States v. Frady, 456 U.S. 152, 166-67 (1982). Therefore, we reject his first two

challenges.

      Robinson was not denied his right to effective assistance of counsel at his

sentencing or on appeal. The legal arguments he desired his attorneys to make had

no reasonable likelihood of success. This court has approved of the extrapolation

method, United States v. Lopes-Montes, 165 F.3d 730, 732 (9th Cir. 1999), and

Robinson’s arguments do not cast doubt on its validity. Furthermore, the

preponderance of the evidence standard was the correct standard to apply at his

sentencing. United States v. Harrison-Philpot, 978 F.2d 1520, 1523-24 (9th Cir.

1992). Therefore, Robinson’s attorneys were not ineffective, and he was not

prejudiced by their performance. See Miller v. Keeney, 882 F.2d 1428, 1435 (9th

Cir. 1989).

      Robinson’s inability to pay his trial counsel created only the potential for a

conflict of interest. Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir. 1995). As


                                          2
such, he must show that his attorney’s performance was objectively unreasonable

and that he was prejudiced as a result. Bonin v. Calderon, 59 F.3d 815, 827 (9th

Cir. 1995). Robinson cannot demonstrate prejudice in the face of the

overwhelming evidence of his guilt and the reduced sentence he received.

      AFFIRMED.




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