United States of America v. Antelmo Ontiveras

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTELMO ONTIVERAS,
Defendant - Appellant.
No. 10-16433
D.C. Nos. 2:09-cv-00739-GEB-
GGH
2:02-cr-00418-GEB-
GGH-3
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted November 5, 2012 **
San Francisco, California
Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.
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
FILED
NOV 19 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 F ED. R. CRIM. P. 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 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 (1984).
On this record, it is clear that Ontiveras would not have entered a guilty
plea. Therefore counsel did not prejudice Ontiveras’ trial by failing to discuss
various pleading possibilities. Id.
The magistrate judge issued findings and recommendations to deny the §
2255 motion in its entirety. The District Court adopted that position in full on
March 26, 2010.
We find nothing in the record to justify reversal.
AFFIRMED.

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