United States of America v. Efrain Rodriguez

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NOT FOR PUBLICATION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.
EFRAIN RODRIGUEZ,
Defendant - Appellant.
No. 10-10593
D.C. No. 5:08-cr-00925-JW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
James Ware, Chief Judge, Presiding
Submitted March 6, 2012**
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Efrain Rodriguez appeals from the 78-month sentence imposed following his
guilty-plea conviction for possession with intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii).
FILED
MAR 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-10593 2
We dismiss.
Rodriguez contends that he was denied effective assistance of counsel at
sentencing when counsel failed to complete his investigation, to submit a
sentencing memorandum, or to adequately prepare for the sentencing hearing. We
are precluded from reaching the merits of Rodriguez’s claim by a valid appeal
waiver in which Rodriguez gave up his right to pursue a direct appeal of his
sentence. See United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (“[O]ne
waives the right to argue ineffective assistance of counsel at sentencing on direct
appeal when one waives the right to appeal the sentence.”).
In any event, the record is insufficiently developed and Rodriguez’s legal
representation was not so inadequate that it can be concluded at this point that he
obviously was denied his Sixth Amendment right to counsel. See United States v.
McKenna, 327 F.3d 830, 845 (9th Cir. 2003) (“Claims of ineffective assistance of
counsel are generally inappropriate on direct appeal.”).
DISMISSED.

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