FILED

NOT FOR PUBLICATION

MAR 11 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-35329

Plaintiff-Appellee, D.C. Nos. 3:20-cv-01909-JO 3:18-cr-00223-JO-1 v.

DARLENE MICHELLE STURDEVANT, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 21-35330

Plaintiff-Appellee, D.C. Nos. 3:20-cv-01910-JO 3:19-cr-00254-JO-1 v.

DARLENE MICHELLE STURDEVANT,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Robert E. Jones, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted March 9, 2022** Portland, Oregon

Before: GRABER and BEA, Circuit Judges, and REISS,*** District Judge.

Petitioner Darlene Sturdevant appeals the district court’s denial of her

petition for habeas corpus brought pursuant to 28 U.S.C.§ 2255. Reviewing the

district court’s denial de novo, United States v. Chacon-Palomares, 208 F.3d 1157,

1158 (9th Cir. 2000), we affirm.

1. Petitioner, in her plea agreements, appears to have waived her right to

attack her sentence collaterally. But even if she has not waived that right, her

challenge fails. Petitioner’s argument regarding her career offender status is

foreclosed by binding precedent. United States v. Crum, 934 F.3d 963, 964, 967

(9th Cir. 2019) (per curiam), holds that a conviction for delivery of

methamphetamine under Oregon Revised Statute section 475.890 qualifies as a

controlled substance offense for sentencing purposes.

2. Petitioner’s claim of ineffective assistance of counsel, therefore, fails as

well. Her lawyer’s failure to raise an argument that was foreclosed by binding case

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Christina Reiss, United States District Judge for the District of Vermont, sitting by designation.

2 law does not satisfy either prong of the test established by Strickland v.

Washington, 466 U.S. 668, 687 (1984). See Rupe v. Wood, 93 F.3d 1434, 1445

(9th Cir. 1996) (noting that “the failure to take a futile action can never be deficient

performance”).

AFFIRMED

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