United States v. Antelmo Ontiveras

MEMORANDUM

Antelmo Ontiveras appeals the denial of his 28 U.S.C. § 2255 motion to vacate his conviction and sentence for conspiracy to possess and possession of, with intent to distribute, methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). He alleges that his trial counsel rendered ineffective assistance by (1) failing to make a motion for acquittal based on insufficiency of the evidence pursuant to Fed.R.CrimP. 29 and (2) not advising Ontiveras of his option to plead guilty without a plea.

There is no basis for a conclusion that trial counsel rendered ineffective assistance. We have reviewed the record, and it leaves no doubt that Ontiveras committed sufficient acts to be charged as a part of the conspiracy to possess and possession of, with intent to distribute methamphetamine under 21 U.S.C. §§ 846 and 841(a)(1). See United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir.2001). Counsel’s failure to make a Rule 29 motion therefore was neither deficient nor prejudicial. Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

On this record, it is clear that Ontiveras would not have entered a guilty plea. Therefore counsel did…