                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 09 2010

                                                                       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. 08-35472

              Plaintiff - Appellee,              D.C. Nos.    6:06-CV-06164-HO
                                                              6:03-CR-60082-HO
  v.

ISRAEL ARREOLA-CONTRERAS,                        MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                             Submitted June 11, 2010 **
                                 Portland, Oregon

Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, 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 Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
       Defendant Arreola-Contreras, a federal prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel

during plea bargaining. The defendant contends that his counsel was ineffective by

erroneously advising him that he would be sentenced up to 365 months as a “career

offender” under the United States Sentencing Guidelines. We have jurisdiction

pursuant to 28 U.S.C. §§ 1291, 2253, and 2255, and we affirm.

       “[T]he two-part Strickland v. Washington test applies to challenges to guilty

pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58

(1985); see Strickland v. Washington, 466 U.S. 668, 687-95 (1984). First, a

defendant must show that, in light of all the circumstances, counsel’s performance

fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88.

Second, the defendant must affirmatively prove prejudice. Id. at 693. Because the

defendant has not made the first showing, we need not address the second. Id. at

700.

       At the time the defendant entered his plea, it was reasonable for defense

counsel to advise that the defendant’s prior DUI-related assault conviction, when

combined with his prior cocaine conviction, qualified him as a career offender with

a potential 365-month sentence. The initial pre-sentencing report issued by the




                                          2
United States Probation Office concluded as much and recommended a sentence of

292-365 months, as defense counsel predicted.

      The defendant does not contend that his counsel’s sentencing advice was

erroneous at the time he plead guilty; he contends that the advice became

inaccurate based on new Supreme Court precedent issued two months later. We

reject this contention in light of the circumstances of this case. As the district court

concluded, “failure of counsel to provide advice based on future precedent does not

fall below an objective standard of reasonableness.” See Strickland, 466 U.S. at

689 (“A fair assessment of attorney performance requires that every effort be made

to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from

counsel's perspective at the time.”).

      The defendant’s contention that his counsel should have anticipated future

precedent based on this court’s decision in United States v. Trinidad-Aquino, 259

F.3d 1140 (9th Cir. 2001) lacks merit. Trinidad reiterated that “recklessness is a

sufficient mens rea for a ‘crime of violence,’” 259 F.3d at 1146 (internal citation

omitted), and the defendant’s prior DUI conviction under Oregon law required

recklessness. Or. Rev. Stat. § 163.165; State v. Hill, 298 Or. 270 (Or. 1984).

      AFFIRMED.




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