                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            SEP 16 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50352

              Plaintiff - Appellee,              D.C. No. 3:13-cr-03943-W-1

 v.
                                                 MEMORANDUM*
JOHN HOWELL MIKULAK,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                     Argued and Submitted September 2, 2015
                              Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

      1. Although we ordinarily do not resolve claims of ineffective assistance of

counsel on direct appeal, the record is sufficiently developed to allow us to do so

here. See United States v. Liu, 731 F.3d 982, 995 (9th Cir. 2013). Even if John

Mikulak’s counsel rendered deficient performance by failing to cite United States



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                               Page 2 of 3
v. Henderson, 649 F.3d 955 (9th Cir. 2011), and the related 2012 Sentencing

Commission report, Mikulak has not met the prejudice prong of Strickland v.

Washington, 466 U.S. 668 (1984). The district court was aware that the

Sentencing Guidelines were advisory and that the court was free to depart

downward from the recommended range. Defense counsel presented the court

with a number of grounds for departing downward, including Mikulak’s potential

for rehabilitation and the fact that he had no intent to distribute content.

Nonetheless, after taking into account all of the equities in Mikulak’s favor as well

as the relevant mitigating factors under 18 U.S.C. § 3553(a), the court sentenced

Mikulak to the low end of the advisory Guidelines range. Mikulak has provided

nothing to suggest that the district court would have departed downward had

defense counsel only cited Henderson or the Sentencing Commission report. In

fact, the government itself had informed the court that other courts had disregarded

the Guidelines and their underlying policies in similar cases, so the court was

aware that a policy disagreement with the child pornography Guidelines provided

an additional potential ground for departure. Mikulak has therefore failed to

establish a reasonable possibility that the court would have imposed a lower

sentence had counsel performed in a non-deficient manner.
                                                                           Page 3 of 3
      2. The district court did not commit plain error by relying on the Sentencing

Guidelines in determining the proper sentence to impose. Although Henderson

authorizes courts to depart from the Guidelines for policy reasons, courts are in no

way obligated to do so. The district court did not consider the Guidelines range

presumptively reasonable, but instead properly determined whether the 121-month

sentence was appropriate given the nature of the crime and Mikulak’s individual

circumstances.

      3. The 121-month, within-Guidelines sentence was not substantively

unreasonable. The court was well aware of the treatment that Mikulak had sought

voluntarily during the year before he was charged and referred to it during

sentencing. There is no evidence that the court failed to take Mikulak’s

rehabilitation into consideration when considering the appropriateness of the

sentence to be imposed.

      AFFIRMED.
