United States of America v. Arsenio Huqueriza

This disposition is not appropriate for publication and is not*
precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument pursuant to Federal Rules of Appellate Procedure 34(a)(2).
The Honorable Richard Mills, United States District Judge for***
the Central District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARSENIO HUQUERIZA,
Defendant - Appellant.
No. 08-10514
D.C. No. CR-08-01119-PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted November 3, 2009**
San Francisco, California
Before: GOODWIN and W. FLETCHER, Circuit Judges, and MILLS, District***
Judge.
FILED
DEC 03 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Arsenio Huqueriza appeals the 63-month sentence that the district court
imposed following his guilty plea to one count of possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B). Huqueriza claims that the prosecutor
committed misconduct by engaging in an improper ex parte communication. He also
alleges that his due process rights were violated when the judge viewed the images
without granting him a hearing. Huqueriza further asserts that counsel’s performance
was deficient for failing to raise these issues at his sentencing hearing. We affirm.
I.
Because the issue of prosecutorial misconduct is raised for the first time on
appeal, it is reviewed for plain error. See United States v. Tarazon, 989 F.2d 1045,
1051 (9th Cir. 1993). Huqueriza argues that the prosecutor engaged in an improper
ex parte communication by encouraging the district judge to view the images before
imposing sentence. The record establishes that defense counsel was listed on the “cc”
line of the letter to the judge. The letter was dated October 27, 2008, and received by
counsel no later than October 30. There was, at most, a slight delay in the
transmission of the letter to counsel. Even if this had been prosecutorial misconduct
(a question we do not reach), it was harmless. It is clear from the record that the
district judge did not view the images until after defense counsel received the letter,
and, in any event, there is no evidence that viewing the images had any particular

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effect on Huqueriza’s sentence. In fact, Huqueriza received a sentence lower than that
recommended in the pre-sentence report to which no one objected. Considering all
of this, Huqueriza cannot show prejudice.
II.
Huqueriza next contends that he was deprived of due process when he was not
afforded an opportunity to be heard on whether the judge would view the images that
Huqueriza admitted possessing. A decision by a district court to grant or deny an
evidentiary hearing is normally reviewed for abuse of discretion. See Estrada v.
Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008). The images in question appear to be
part of “the nature and circumstances of the offense” that the judge may consider in
sentencing, pursuant to 18 U.S.C. § 3553(a)(1). Accordingly, the district court did not
abuse its discretion.
III.
Huqueriza next contends that he received ineffective assistance of counsel when
no objection was raised to the viewing of the evidence at sentencing. We generally
do not review claims of ineffective assistance of counsel on direct appeal. See United
States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005). However, ineffective
assistance claims can be considered on direct appeal if the factual record is sufficiently
developed; such claims are reviewed de novo. United States v. Nickerson, 556 F.3d

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1014, 1018 (9th Cir. 2009).
In order to show ineffective assistance of counsel, a defendant must show (1)
that his counsel’s performance was deficient and (2) that the deficiency prejudiced his
defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We are unable to
conclude that defense counsel’s performance was deficient. Counsel filed a lengthy
sentencing memorandum, wherein he identified mitigating factors and argued that a
probationary sentence was appropriate. Counsel arranged for Huqueriza and several
members of Huqueriza’s family to speak on his behalf. Although counsel did not
raise prosecutorial misconduct and due process claims at the sentencing hearing, those
claims would have been without merit for the reasons already noted.
The second prong also cannot be met. Even if counsel had raised the claims,
the court likely would have viewed the evidence anyway, as it was entitled to do.
Based on her own statements, the judge likely would have imposed the same sentence
of 63 months imprisonment, which was nearly three years below the bottom of the
applicable Sentencing Guidelines range. Accordingly, Huqueriza would not be able
to show that he was prejudiced by any deficiency.
AFFIRMED.

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