                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 01 2013

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



FRANCISCO ANDRES-FRANCISCO,                      No. 10-55620

               Petitioner - Appellant,           D.C. Nos.    2:10-cv-00070-GHK
                                                              2:08-cr-00295-GHK
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM *

               Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Central District of California
                      George H. King, Chief Judge, Presiding

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Federal prisoner Francisco Andres-Francisco appeals from the district

court’s order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct

his sentence. We have jurisdiction under 28 U.S.C. § 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).
      Andres-Francisco contends counsel’s failure to file a notice of appeal

constituted constitutionally deficient performance. We review a district court’s

denial of a section 2255 motion de novo. See United States v. Manzo, 675 F.3d

1204, 1209 (9th Cir. 2012). The district court properly denied the motion because

Andres-Francisco has not shown that there is a reasonable probability that he

would have appealed had his trial attorney consulted with him explicitly about the

merits of appealing his criminal history calculation. See Roe v. Flores-Ortega, 528

U.S. 470, 484-86 (2000).

      AFFIRMED.




                                         2                                      10-55620
