United States v. Efrain Soto

MEMORANDUM *

Efrain Soto appeals the dismissal of his 28 U.S.C. § 2255 motion by the district court. We affirm.

We assume for purposes of this appeal, without deciding, that Soto’s waiver in his plea agreement of “his right to challenge his conviction, sentence or the manner in which it was determined in any post-conviction attack, including but not limited to a motion brought under Title 28, United States Code, Sections 2241 or 2255” did not preclude Soto from raising his claim of ineffective assistance of counsel (“IAC”) at sentencing.

1. Soto contends that he was accorded IAC when his lawyer failed to challenge the firearm enhancement, and also that effective counsel would have moved at sentencing to withdraw the plea because the firearm enhancement was not mentioned in the plea agreement.

His lawyer did to a degree challenge the firearm enhancement. Moreover, even if Soto’s lawyer had more adequately challenged the firearm enhancement, Soto suffered no prejudice. To impose the enhancement, the district court needed to find by a preponderance of the evidence only that it was not “clearly improbable that the weapon was connected with the [drug] offense.” U.S.S.G. § 2D 1.…

concurring.

Judge WALLACE concurs in the judgment only.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT OCT 02 2012

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA, No. 09-17007

Plaintiff - Appellee, D.C. Nos. 1:08-cv-00401-AWI 1:06-cr-00315-AWI v.

EFRAIN SOTO, MEMORANDUM *

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding

Argued and Submitted September 11, 2012 San Francisco, California

Before: WALLACE, THOMAS, and BERZON, Circuit Judges.

Efrain Soto appeals the dismissal of his 28 U.S.C. § 2255 motion by the

district court. We affirm.

We assume for purposes of this appeal, without deciding, that Soto’s waiver

in his plea agreement of “his right to challenge his conviction, sentence or the

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. manner in which it was determined in any post-conviction attack, including but not

limited to a motion brought under Title 28,…