Vasquez

MEMORANDUM *

Hector Vasquez appeals his conviction on and sentence for multiple counts of possession and distribution of child pornography. We affirm the judgment of conviction and remand the sentence in accordance with United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

The district court did not err in denying Vasquez a new trial based on alleged ineffective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), Vasquez failed to show both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him. Vasquez’s attorney provided a detailed, reasonable explanation for not calling Thomas Havatone. A counsel’s “tactical” decision not to call a witness does not provide a basis for ineffective assistance of counsel. See id. at 690 , 104 S.Ct. 2052 (“[Strategic choices ... virtually unchallengeable. ...”).

The district court also did not err by permitting the indictment to be amended on Counts 28, 29, and 30 from possession of “one image” of child pornography to possession of “three or more images.” At most, the amendment was a nonfatal…