NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 19 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-16097

Plaintiff-Appellee, D.C. Nos. 11-CR-00009-JSW v. 15-CV-01251-JSW

JASPER KNABB, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted July 7, 2021 San Francisco, California

Before: TASHIMA and GRABER, Circuit Judges, and VRATIL,** District Judge. Dissent by Judge TASHIMA

Defendant Jasper Knabb pleaded guilty to conspiracy to commit securities

fraud in violation of 18 U.S.C. § 1349, securities fraud in violation of 18 U.S.C.

§ 1348 and falsifying books, records and accounts in violation of 15 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. §§ 78m(b)(2)(A), 78m(b)(5) and 78ff. Defendant appeals the district court’s denial

of his motion to vacate his sentence under 28 U.S.C. § 2255, asserting that his first

counsel provided ineffective assistance during plea negotiations and that

replacement counsel failed to file a motion to withdraw his guilty plea before

sentencing. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

Reviewing de novo the district court’s denial of a § 2255 motion, United

States v. Olsen, 704 F.3d 1172, 1178 (9th Cir. 2013), and reviewing for abuse of

discretion its denial of an evidentiary hearing, id., we affirm.

1. As to the claim that counsel did not correctly advise Defendant of the

probable sentence, we address only the prejudice prong. See Rios v. Rocha, 299

F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong” of the test from

Strickland v. Washington, 466 U.S. 668 (1984), “obviates the need to consider the

other”). Defendant has not alleged facts that would show a reasonable probability

that, absent the purported advice, “he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Defendant alleged that “had he known that the guilty plea would cause his

imprisonment for 21 years, he would have taken the risk of trial . . . since the

maximum statutory penalty [was] 25 years.” Here, prejudice is not assessed by the

disparity between the predicted and actual sentences. Instead, the question of

prejudice is whether Defendant would have pleaded guilty or insisted on going to

2 trial if counsel had correctly advised him of the possibility that his guilty plea could

result in a sentence of 21 years after enhancements and an upward variance.

Defendant’s course of conduct after his guilty plea belies any claim that if initial

counsel had correctly advised him of his potential sentencing exposure, he would

have insisted on going to trial. At the first sentencing hearing, the district court

warned that several sentencing enhancements not mentioned in the plea agreement

might apply and that it needed more time to assess the matter. The Probation Officer

then issued an amended presentence investigation report that applied a four-level

enhancement for Defendant’s role in the offense, U.S.S.G. § 3B1.1(a), and a four-

level enhancement for officers and directors of publicly traded companies who

violate securities law, U.S.S.G. § 2B1.1(b)(18)(A).1 The Probation Officer

recommended a sentence of 210 months, which was the low end of the calculated

guideline range of 210 to 262 months (21 years and 10 months).

Defendant then asked his replacement lawyers to withdraw his guilty plea.

They recommended that he not do so, and Defendant makes no allegation that he

rejected that advice or otherwise pursued his request to file a motion to withdraw,

either through his replacement lawyers of record or additional counsel that he had

retained. Likewise, at sentencing during allocution, Defendant did not suggest that

prior counsel had misled him about his sentencing exposure and he did not express

1 The current Guidelines Manual recodifies this provision at § 2B1.1(b)(20)(A).

3 any desire to withdraw his plea and proceed to trial. In other words, even after

learning that his original counsel had grossly misstated his exposure under the

Guidelines, Defendant chose not to request that the district court allow him to

withdraw his plea and proceed to trial. Accordingly, he cannot establish prejudice

on his claim that during plea negotiations, counsel did not correctly advise him about

his sentencing exposure.

2. As to the claim that counsel should have filed a motion to withdraw the

plea before sentencing, we address only whether counsel’s performance was

deficient. The district court correctly determined that Defendant did not meet his

burden on this prong. After Defendant asked his replacement attorneys to file a

motion to withdraw the plea, they explained that despite the district court’s

comments that the agreed guideline range seemed incorrect and low, (1) the

government agreed to abide by the plea agreement, (2) withdrawing the plea could

result in a harsher sentence, (3) withdrawing the plea could result in additional

charges and (4) based on the United States Attorney’s representation, withdrawing

the plea would result in a trial. In addition to the obvious risks of withdrawing the

plea and going to trial or pleading guilty without an agreement, counsel had a

reasonable basis to argue at sentencing that consistent with the plea agreement, the

government’s consent and the sentence imposed on a co-defendant, the court should

apply the agreed guideline range of 63 to 78 months or—if a higher range applied—

4 that the district court should vary downward. Therefore, counsel’s advice about the

risks of withdrawing from the plea falls within the “wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689.

In any event, Defendant has not cited record evidence that counsel “refused”

to file a motion to withdraw the plea. Counsel simply advised Defendant that they

thought the risks of filing the motion outweighed the benefits. They also informed

him of the procedures and deadline for filing such a motion. Defendant has not

alleged that after receiving such advice, he insisted that counsel file the motion. In

fact, the record does not show that Defendant responded to this advice. Also,

Defendant does not explain why he did not pursue the motion with substitute

counsel, whom he had recently hired. Likewise, the record does not reveal that, at

sentencing or otherwise, Defendant ever alerted the court that he wanted to withdraw

his plea. Defendant may regret his gamble to proceed with sentencing, but that regret

provides no grounds for relief. In sum, Defendant has not alleged sufficient facts to

establish that counsel’s performance was deficient.

3. Because Defendant’s motion and the record conclusively show that he

was not entitled to relief on his ineffective assistance claims, the district court did

not abuse its discretion in refusing to hold a hearing. See 28 U.S.C. § 2255(b)

(“Unless the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief, the court shall . . . grant a prompt hearing.”).

5

AFFIRMED.

6

FILED

United States v. Knabb, No. 19-16097

AUG 19 2021

TASHIMA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

“When a prisoner files a § 2255 motion, the district court must grant an

evidentiary hearing ‘[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.’” United States v.

Chacon-Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000) (quoting 28 U.S.C.

§ 2255) (emphasis added). Knabb alleges ineffective assistance by his first

attorney, Christopher Bruno, for advising him to enter into a plea agreement whose

projected sentence, undoubtedly, was a “gross mischaracterization of the likely

outcome” in the case. Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986). He also

alleges ineffective assistance by replacement counsel, Kirk Elliott and Mark

Goldrosen, who advised him not to withdraw his guilty plea. The majority rejects

Knabb’s allegation regarding Bruno on the ground that he failed to demonstrate

prejudice and regarding Elliott and Goldrosen on the ground that their advice was

not deficient. However, Knabb’s allegations raise important fact-bound questions

regarding the effectiveness of counsel that cannot be resolved on this record. I

therefore would reverse and remand because, at the very least, the matter deserves

and needs an evidentiary hearing to resolve the serious factual issues raised by

Knabb.

The majority does not dispute that the agreed-upon sentence in the plea agreement grossly mischaracterized the likely outcome. In the plea agreement, the

government agreed to recommend an adjusted offense level of 26, with a

Guidelines exposure of 63 to 78 months. According to Knabb’s declarations

submitted in support of his § 2255 motion, his attorney advised him to accept the

agreement, assuring him that he “would likely do only months of time.”

However, at the first sentencing hearing, where Knabb was represented by

Elliott and Goldrosen, the district court made it clear that it disagreed with the

offense level agreed upon by the parties. The court raised several enhancements it

believed were applicable, including enhancements for being an organizer, the

number of victims, and obstruction of justice; it ordered a supplemental

Presentence Report (PSR) and supplemental briefing by the parties. The

supplemental PSR recommended an offense level of 39, thirteen levels higher than

in the plea agreement, which resulted in a Guidelines range of 262 to 300 months.

In light of the district court’s indication that it disagreed with the sentencing

range set forth in the plea agreement and that other enhancements applied, Knabb

asked Elliott and Goldrosen to withdraw his plea. They responded that they were

hired only to represent him at sentencing, not to file a motion to withdraw the plea,

and advised him not to withdraw the plea. The court sentenced Knabb to a term of

253 months’ imprisonment.

2 Given that the plea agreement recommended a sentence between 63 and 78

months and that Knabb was sentenced to 253 months, it is difficult to understand

the district court’s conclusion that Knabb failed to show that Bruno grossly

mischaracterized the likely sentence. The majority concludes that, although

Bruno’s advice about the sentence may have been deficient, there was no prejudice

because Knabb was correctly informed by the district court of his potential

sentencing exposure and decided to plead guilty anyway. The majority’s “no

prejudice” characterization, however, is not the controlling issue. The relevant

question under our case law is whether Knabb would have pled guilty if he had

been properly advised by his attorneys. See Lafler v. Cooper, 566 U.S. 156, 163

(2012) (explaining that to show prejudice, “a defendant must ‘show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different,’” and that, “[i]n the context of pleas a

defendant must show the outcome of the plea process would have been different

with competent advice” (quoting Strickland v. Washington, 466 U.S. 668, 694

(1984))) (emphasis added); Iaea, 800 F.2d at 865 (“To satisfy the prejudice

component in the context of a guilty plea, the defendant ‘must show that there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial’” (quoting Hill v. Lockhart, 474

3 U.S. 52, 59 (1985))) (emphasis added). It was Knabb’s counsel’s duty, not the

district court’s duty, to advise Knabb whether or not to plead guilty.

Our precedent establishes that counsel’s “gross mischaracterization of the

likely outcome” may constitute ineffective assistance. Iaea, 800 F.2d at 865.

Contrary to the majoriy’s assertion, that the defendant may have been properly

informed by the court does not mean there is no prejudice. See, e.g., United States

v. Manzo, 675 F.3d 1204, 1208-10 (9th Cir. 2012) (reversing denial of § 2255

motion and remanding for “prejudice analysis of whether if correctly advised” of

the effects of grouping on the offense level and on acceptance of responsibility, the

defendant would have pled guilty, even though the PSR had informed him of the

proper sentencing range).

In Manzo, the PSR clearly informed the defendant of the applicability of a

grouping provision that yielded an offense level of 38, not the level of 34 agreed to

by the parties in the plea agreement. The defendant’s attorney filed objections to

the PSR but did not advise him to seek to withdraw from the plea agreement in

light of the agreement’s failure to take into account the grouping provision. After

the higher sentence indicated by the PSR was imposed, the defendant filed a §

2255 motion, arguing that “his attorney gave him ineffective assistance of counsel

by not anticipating that the offenses would be grouped for sentencing, and by not

4 advising [him] to withdraw from the plea agreement once it was clear that the

offenses would be grouped for sentencing.” Id. at 1209. We reversed the district

court’s denial of the motion. Id. at 1210.

Thus, the PSR in Manzo informed the defendant of the proper calculation of

the sentence. Nonetheless, the issue was whether the attorney gave ineffective

assistance by failing to advise the defendant to withdraw from the plea agreement

after it was obvious the sentence in the plea agreement was not accurate.

Similarly, Knabb was informed of the potential maximum sentence by the court,

but this is not the same as receiving advice from counsel about whether or not to

enter into the plea agreement. As in Manzo, Knabb argues that his counsel was

ineffective for failing to anticipate the applicability of several enhancements that

clearly applied and by not advising him to withdraw from the plea agreement after

the district court and the supplemental PSR made it clear that the calculation of the

sentence in the plea agreement was grpss;y inaccurate.

Bruno should have at least advised Knabb that the court most likely would

apply the four-level enhancement under U.S.S.G. § 2B1.1(b)(18)(A) because the

offense obviously involved a violation of the securities laws and Knabb was an

officer or director of a publicly-traded company. In fact, because of the clear

applicability of this enhancement, it should have been apparent not only to Bruno

5 that the plea agreement grossly underestimated the likely sentence, but also to

Elliott and Goldrosen. Elliott and Goldrosen further had the benefit of the

supplemental PSR and the district court’s obvious disagreement with the sentence

recommended in the plea agreement.1 I therefore disagree with the majority that

counsel’s advice not to withdraw from the plea agreement was not deficient.

“A claim must be ‘so palpably incredible or patently frivolous as to warrant

summary dismissal’ in order to justify the refusal of an evidentiary hearing.”

United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004) (quoting United States

v. Leonti, 326 F.3d 1111, 1116 (9th Cir.2003)). Knabb has “allege[d] specific facts

which, if true, would entitle him to relief” – that Bruno drastically underestimated

the sentence he would receive and that Elliott and Goldrosen failed to move to

withdraw his plea after counsel was requested to do so and after it was clear the

1 I further note that Elliott’s initial response was that he and Goldrosen were not hired to file a motion to withdraw, but only to represent Knabb at sentencing. However, “[a]n attorney owes a professional duty of care to every person with whom that attorney has an attorney-client relationship.” Streit v. Covington & Crowe, 98 Cal. Rptr. 2d 193, 197 (Ct. App. 2000). The attorney in Streit made only a special appearance – how much more so is a criminal defense attorney required to act in a client’s best interests, even if the circumstances indicate that the nature of the representation has changed. In fact, the California Rules of Court, which provide rules for limited-scope representation in civil cases, provide no similar rules in criminal cases. See Cal. Rules of Court, rules 3.35-3.37.

6 sentence would be much longer than Knabb had been told. Id. And, “the petition,

files and record of the case cannot conclusively show that he is entitled to no

relief” because the claims involve extra-record events. Id.; see also Manzo, 675

F.3d at 1210 (reversing the denial of § 2255 motion and remanding where the

record did not “contain the historical views of defense counsel” or of the defendant

on “whether if correctly advised [the defendant] would have pleaded guilty anyway

and declined the chance to withdraw his plea and go to trial”). I therefore conclude

that the district court’s failure to hold an evidentiary hearing constituted an abuse

of discretion. See Chacon-Palomares, 208 F.3d at 1158–60 (concluding that the

district court erred in denying a § 2255 motion without an evidentiary hearing

where the defendant, who received a 108-month sentence, argued that his lawyer

was ineffective because he induced him to reject a plea offer by incorrectly

informing him that he faced a maximum sentence of six months); Chacon v. Wood,

36 F.3d 1459, 1464–65 (9th Cir. 1994) (remanding for evidentiary hearing where §

2254 petitioner alleged that “he was presented with a gross mischaracterization of

the likely outcome – he alleges that he was told that he would serve only three

months in jail if he pleaded guilty, but he has been forced to serve ten years

imprisonment,” and that, “absent this erroneous advice, he would not have pleaded

guilty”), superseded by statute on other grounds as stated in Hall v. City of Los

7 Angeles, 697 F.3d 1059, 1070 (9th Cir. 2012).

For the foregoing reasons, I would remand for an evidentiary hearing. I

respectfully dissent.

8