United States v. John Mikulak

MEMORANDUM

1. Although we ordinarily do not resolve claims of ineffective assistance of counsel on direct appeal, the record is sufficiently developed to allow us to do so here. See United States v. Liu, 731 F.3d 982, 995 (9th Cir.2013). Even if John Mikulak’s counsel rendered deficient performance by failing to cite United States v. Henderson, 649 F.3d 955 (9th Cir.2011), and the related 2012 Sentencing Commission report, Mikulak has not met the prejudice prong of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The district court was aware that the Sentencing Guidelines were advisory and that the court was free to depart downward from the recommended range. Defense counsel presented the court with a number of grounds for departing downward, including Mikulak’s potential for rehabilitation and the fact that he had no intent to distribute content. Nonetheless, after taking into account all of the equities in Mikulak’s favor as well as the relevant mitigating factors under 18 U.S.C. § 3553 (a), the court sentenced Mikulak to the low end of the advisory Guidelines range. Mikulak has provided nothing to suggest that the district court would have…