                                                                               FILED
                           NOT FOR PUBLICATION                                 JAN 09 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50180

              Plaintiff - Appellee,              D.C. No. 5:10-cr-00058-VAP-1

  v.
                                                 MEMORANDUM*
CHRISTOPHER HENRY LISTER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                          Submitted December 9, 2014**
                              Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges, and BELL, District Judge.***

       Appellant Christopher Henry Lister pleaded guilty to Conspiracy to

Distribute and Dispense a Controlled Substance in violation of 21 U.S.C. §§ 846,

        *
             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 Holmes Bell, District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
841(a)(1), and 841(b)(1)(C). Lister challenges both his conviction and his

sentence.

      Lister first argues the government violated his Brady rights by failing to turn

over evidence relevant to sentencing and that his counsel was ineffective under

Strickland. See Brady v. Maryland, 373 U.S. 83 (1963); Strickland v. Washington,

466 U.S. 668 (1984). Lister provided the factual support for these claims in

declarations attached to his opening brief; those declarations were not before the

district court. This Court struck those declarations and any arguments that rely on

them; Lister’s Brady and Strickland arguments were therefore stricken. But those

arguments fail even had they not been stricken. Lister has not shown a Brady

violation. And this Court generally does not “review challenges to the

effectiveness of counsel on direct appeal.” United States v. Liu, 731 F.3d 982, 995

(9th Cir. 2013). This is not the rare case where a counsel’s effectiveness is ripe for

review on direct appeal.

      Lister next argues he is entitled to the benefits of a recent change in the

Department of Justice’s policy for prosecuting drug crimes. But we have held a

defendant cannot rely on an alleged violation of an internal Department of Justice

policy as a basis for relief. See Spillman v. United States, 413 F.2d 527, 529–30

(9th Cir. 1969). In any event, the policy upon which Lister relies applies only to


                                          2
defendants who face mandatory minimum sentences. As Lister was not given a

mandatory minimum sentence, the policy is inapplicable.

      Lister also challenges in two ways the district court’s finding he has six

criminal history points, which put him in criminal history category III. First, Lister

argues the district court should not have added a criminal history point for a

conviction in 2000 because that conviction occurred more than ten years prior to

the conduct supporting this conviction. See U.S.S.G. §§ 4A1.1(c), 4A1.2(e)(2).

But Lister was sentenced for the 2000 conviction on January 6, 2000. The conduct

supporting the conviction in this case occurred between May 8, 2009 and

November 5, 2009. The 2000 conviction therefore falls within ten years of Lister’s

commencement of this offense. See U.S.S.G. § 4A1.2(e)(2).

      Second, Lister argues the district court should not have added two criminal

history points because he was on probation for a conviction in 2008. See U.S.S.G

§ 4A1.1(d). However, Lister was on probation for a 2006 conviction until June 19,

2009 and was on probation for the 2008 conviction until July 15, 2011. As earlier

noted, Lister commenced his criminal conduct in this case on May 8, 2009. He

was therefore on probation for both offenses when he committed this offense and

the district court correctly added two criminal history points as a result. But even

if the district court misapplied two criminal history points, that error was harmless.


                                          3
Lister has four convictions that occurred within ten years of the conduct supporting

this conviction. Each of those convictions adds one point to Lister’s criminal

history, and those four points still place Lister in criminal history category III. See

U.S.S.G. Ch. 5, Pt. A; United States v. Allen, 153 F.3d 1037, 1046 (9th Cir. 1998)

(finding harmless an error in calculating criminal history points because the

defendant would have fallen in the same category absent the error).

      Finally, Lister argues his within-Guidelines sentence was substantively

unreasonable. We have held a within-Guidelines sentence “will usually be

reasonable,” United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc)

(internal citation and quotation marks omitted), and “ordinarily needs little

explanation” to affirm, id. at 992. Because the district court’s sentence was within

the Guidelines range and the district court gave several reasons on the record for

that sentence, it is reasonable.

AFFIRMED.




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