United States v. Pedro Pena

MEMORANDUM

Pedro Pena appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his 130-month sentence for distribution of methamphetamine. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Pena argues that his trial and appellate counsel were ineffective when they failed to object to the base offense level used at sentencing. He argues that counsel should have objected because that level was derived, in part, from a dismissed count. We review ineffective assistance of counsel claims and the denial of a 28 U.S.C. § 2255 motion de novo. United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir.2012). To demonstrate ineffective assistance of counsel, Pena must show that counsel’s representation fell below an objective standard of reasonableness and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-88 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

Pena’s trial counsel’s failure to object to the base offense level and his appellate counsel’s failure to raise the issue on appeal was not unreasonable because any objection would have been without merit. See Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.1989) (“The failure to…