Panaro

MEMORANDUM **

Federal prisoner Robert Panaro (“Panaro”) filed a petition under 28 U.S.C. § 2255 (“Section 2255”) to vacate his conviction and sentence for conspiracy to interfere with commerce by extortion in violation of the Hobbs Act, 18 U.S.C. §§ 1951-1952 . We affirm the district court’s denial of the petition.

Panaro argues for the first time that his trial counsel was constitutionally ineffective in having failed to argue for the application of United States Sentencing Guideline § 2X1.1 (“Guideline § 2X1.1”) to reduce Panaro’s base offense by three levels because the underlying substantive offense had not been completed. Athough such a failure would have resulted in a forfeiture of the issue before the district court and hence on direct appeal (United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.1994)), an ineffective-assistance-of-counsel claim is a constitutional violation, *592 so that no forfeiture of that claim results from the failure to raise it at trial or on appeal (see, e.g., United States v. McMullen, 98 F.3d 1155, 1157-58 (9th Cir.1996)).

But although that brings the matter before us for decision, Panaro cannot succeed on the merits. That is so because he…