                                                                           FILED
                                                                            JUN 14 2016
                    UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,
                                                 No. 14-55555
              Plaintiff - Appellee,
                                                 DC Nos.      CV 13-00453 BTM
       v.                                                     CR 09-00365 BTM

TRAVIS CHELBERG, aka Whisper,                    ORDER

              Defendant - Appellant.


Before:      TASHIMA, SILVERMAN, and GRABER, Circuit Judges.

      The Memorandum filed May 6, 2016, is withdrawn and replaced by a

corrected Memorandum filed concurrently with this Order, which corrects the

sentence imposed on Defendant. With that correction, the panel has voted to deny

the petition for panel rehearing. Judges Silverman and Graber vote to deny the

petition for rehearing en banc and Judge Tashima so recommends. The full court

has been advised of the petition for rehearing en banc and no judge of the court has

requested a vote on en banc rehearing. See Fed. R. App. P. 35(f). The petition for

panel rehearing and the petition for rehearing en banc are denied. No further

petitions for panel rehearing and/or rehearing en banc with respect to the corrected

Memorandum will be entertained.
                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              JUN 14 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 14-55555

               Plaintiff - Appellee,              DC Nos.      CV 13-0453 BTM
                                                               CR 09-0365 BTM
 v.

TRAVIS CHELBERG, aka Whisper,                     MEMORANDUM*

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Barry Ted Moskowitz, District Judge, Presiding

                              Submitted April 6, 2016**
                                Pasadena, California

Before:        TASHIMA, SILVERMAN, and GRABER, Circuit Judges.

      Defendant-Appellant Travis Chelberg filed a motion for post-conviction

relief in the district court under 28 U.S.C. § 2255, claiming ineffective assistance

of counsel. Chelberg argued that his trial attorney’s advice – to admit in his plea


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
agreement that he qualified as a career offender under the Sentencing Guidelines –

was constitutionally inadequate. The district court denied the motion. We have

jurisdiction under 28 U.S.C. §§ 2253(a) and 2255(d), and we affirm.

                                         I.

      In 2009, Chelberg was charged with: (1) being a felon in possession of

firearms in violation of 18 U.S.C. §§ 922(g), 924(a)(1); and (2) conspiracy to

distribute methamphetamine in violation of 21 U.S.C. §§ 841, 846. While in

custody on these charges, Chelberg attacked a fellow prisoner. Based on this

incident, a superseding information was filed, charging Chelberg with assault with

intent to commit a felony (witness tampering), in violation of 18 U.S.C. §§ 7,

113(a)(2). Taken together, the foregoing charges would have subjected Chelberg

to significant prison time. Chelberg pleaded guilty to the felon in possession and

assault charges. In exchange, the government agreed to dismiss the conspiracy

charge, which carried the heaviest potential sentence.

      The plea agreement also stated that Chelberg qualified for a career offender

enhancement under U.S.S.G. § 4B1.1. At the sentencing hearing Chelberg himself,

separate from his attorney, raised questions about whether his predicate offenses

properly qualified for application of the career offender enhancement. The

sentencing judge found Chelberg’s concerns to be without merit. The judge


                                        -2-
imposed a 120-month sentence of imprisonment as to Count 1 and a consecutive

48-month sentence as to Count 2, for an aggregate sentence of 168 months (14

years).

      In February 2013, Chelberg filed a motion for post-conviction relief under

28 U.S.C. § 2255. As he did at the sentencing hearing, Chelberg argued that one of

his predicate offenses could not properly be counted when applying the career

offender enhancement. Were the court unable to count the predicate offense,

Chelberg argues that he would not qualify for the enhancement. Thus, Chelberg

believes that the attorney who negotiated his plea agreement and represented him

at the sentencing hearing provided ineffective assistance of counsel by advising

Chelberg to admit career offender status. The district court denied the § 2255

motion and granted a Certificate of Appealability (“COA”) as to that issue.

                                          II.

      To prove ineffective assistance of counsel when a habeas petitioner has

pleaded guilty, a defendant must show that: (1) “counsel’s representation fell

below an objective standard of reasonableness,” Strickland v. Washington, 466

U.S. 668, 688 (1984); and (2) “there is a reasonable probability that, but for

counsel’s errors, [the defendant] would not have pleaded guilty and would have

insisted on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Here,


                                         -3-
Chelberg’s attorney’s representation that Chelberg qualified for the career offender

enhancement did not fall below an objective standard of reasonableness.1

      To qualify for a career offender enhancement, a defendant must be an adult

charged with “a felony that is either a crime of violence or a controlled substance

offense” and have “at least two prior felony convictions of either a crime of

violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The Guidelines

define “two prior felony convictions” as including two felony convictions that “are

counted separately” under U.S.S.G. § 4A1.1(a), (b), or (c). Id. § 4B1.2(c). Prior

offenses are counted separately if they “were imposed for offenses that were

separated by an intervening arrest.” Id. § 4A1.2(a)(2).

      The district court held that Chelberg qualified for the enhancement based on

two prior felony convictions. First, in 1996, Chelberg was convicted of assault

with a firearm, in violation of California Penal Code § 245(a)(2). Second, in 1999,




      1
            We need not reach the second prong of the Strickland analysis. We
note, however, that Chelberg received the plea bargain he requested.

                                        -4-
Chelberg was convicted of possession of a controlled substance for sale, in

violation of California Health and Safety Code § 11378.2

      Chelberg argues that his 1999 possession conviction does not qualify as a

predicate offense, because the government did not present evidence that it was

separated from the 1999 transportation conviction by an intervening arrest.3

However, the PSR stated that the 1999 convictions were separated by an

intervening arrest. Chelberg never objected to or otherwise questioned the

accuracy of the PSR, although he was given the opportunity to do so at his

sentencing hearing, nor did he adduce any evidence refuting this point. It was thus

objectively reasonable for the attorney to rely on the uncontested facts as stated in

the PSR when advising Chelberg to admit career offender status in his plea. See


      2
              On the same day that Chelberg was sentenced on the possession
charge, he was sentenced on a separate charge of transporting a controlled
substance, in violation of Cal. Health & Safety Code § 11379(a). The
transportation conviction did not clearly qualify as a prior controlled substance
conviction, and the court did not rely on it in applying the career offender
enhancement. The Pre-Sentence Investigation Report (“PSR”) indicated that
Chelberg was arrested on the transportation charge about four months after his
arrest on the possession charge.
      3
             Chelberg’s argument rests on the premise that because these two
convictions were not separated by an intervening arrest, under the Guidelines, they
should be treated as a single offense, and because transportation does not qualify as
a controlled substance offense, his 1999 conviction is not a qualifying career
offender offense. We need not address this issue because, as explained in the text,
above, the premise of Chelberg’s argument fails.

                                         -5-
Hill, 474 U.S. at 61-62 (White, J., concurring) (noting that there was “no factual

basis for suggesting that attorney’s advice was incompetent” where there was no

evidence that the petitioner conveyed a critical fact to the attorney); United States

v. Roberts, 5 F.3d 365, 371-72 (9th Cir. 1993) (holding that counsel’s advice was

objectively reasonable where there was no evidence that the alleged inaccuracies in

the PSR actually existed).4

                                          III.

      Chelberg raises a number of other arguments on appeal that are not included

in the COA. “In federal habeas corpus proceedings, the exercise of appellate

jurisdiction is dependent entirely upon the issuance of a COA.” United States v.

W.R. Grace, 526 F.3d 499, 522 (9th Cir. 2008) (en banc) (ellipsis omitted)

(quoting Phelps v. Alameda, 366 F.3d 722, 726 (9th Cir. 2004)); see also 28 U.S.C.

§ 2253(c). We may expand the COA, see Ninth Cir. R. 22-1(e), but “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014) (quoting 28 U.S.C. §




      4
                It follows also that the district court did not err in relying on the
unchallenged PSR. See United States v. Romero-Rendon, 220 F.3d 1159, 1161
(9th Cir. 2000) (“[A] district court may rely on an unchallenged PSR at sentencing
to find . . . that the facts underlying a sentence enhancement have been
established.”).

                                         -6-
2253(c)(2)). Because Chelberg has not made such a showing, we decline to

expand the COA.

      AFFIRMED.




                                     -7-
