                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUN 11 2010

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

SAMER KARAWI,                                    No. 09-35229

              Petitioner - Appellant,            D.C. Nos.    2:08-cv-00947-RSL
                                                              2:04-cr-00398-RSL-2
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM*

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert S. Lasnik, Chief District Judge, Presiding

                             Submitted June 9, 2010**
                               Seattle, Washington

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.

       Samer Karawi (“Karawi”) appeals the district court’s denial of his motion to

vacate his sentence pursuant to 28 U.S.C. § 2255(a). We review de novo the denial




        *
             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).
of a federal prisoner’s § 2255 motion, United States v. Day, 285 F.3d 1167, 1169

(9th Cir. 2002), and we affirm.

      Karawi was convicted of distributing pseudoephedrine with reason to

believe it would be used to manufacture methamphetamine in violation of 21

U.S.C. § 841(c)(2), and he was given a below-guidelines sentence of 144 months.

His conviction was affirmed on direct appeal.

      Karawi’s § 2255 motion raises claims of ineffective assistance of counsel,

and though they were not raised on direct appeal, they are not procedurally

defaulted. United States v. Braswell, 501 F.3d 1147, 1150 n.1 (9th Cir. 2007)

(citing Massaro v. United States, 538 U.S. 500, 505 (2003)), cert. denied, 128 S.

Ct. 2098 (2008). Accordingly, we may not grant the writ unless Karawi

demonstrates that his appellate counsel’s performance was deficient and that this

deficient performance prejudiced the defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984).

      Karawi has not demonstrated either deficient performance or prejudice. His

appellate counsel reasonably declined to argue on direct appeal that the district

judge improperly “testified” in violation of Federal Rule of Evidence 605. The

relevant statements by the district court were not “testimony,” but rather comments

on a witness’s testimony made in the course of resolving a defense objection.


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Moreover, any alleged inaccuracy in those comments was harmless given the

overwhelming amount of independent evidence establishing Karawi’s knowledge

that the pseudoephedrine he sold was being used illegally. See United States v.

Berber-Tinoco, 510 F.3d 1083, 1092-93 (9th Cir. 2007).

      Further, Karawi has not shown deficient performance or prejudice with

respect to the calculation of his advisory guidelines range. Because Karawi’s trial

counsel did not argue that his prior false reporting offense should not be counted in

his criminal history, any related claim of error on direct appeal would have been

subject to plain error review. United States v. Jimenez, 258 F.3d 1120, 1124-25

(9th Cir. 2001). Appellate counsel acted reasonably in not alleging a sentencing

error on direct appeal, as any error by the district court was not plain from the

record or then governing law. The relevant guidelines were arguably ambiguous as

to whether Karawi’s false reporting sentence should be counted when it had been

vacated pending retrial on a related crime. See U.S.S.G. § 4A1.2(a)(4) and (c)(1);

see also United States v. Gonzales, 506 F.3d 940, 942-44 (9th Cir. 2007) (en banc).

Moreover, even assuming the offense was improperly counted, Karawi’s actual

sentence was significantly below the range he now proposes was correct.

However, he has not established a “reasonable probability that, but for counsel’s

[alleged] unprofessional errors, the result of the proceeding would have been


                                          3
different,” Strickland, 466 U.S. at 694, nor the serious error required to satisfy the

plain error standard, see United States v. Nevils, 598 F.3d 1158, 1170 (9th Cir.

2010) (en banc).

      AFFIRMED.




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