United States of America v. RAUL ANCHONDO, AKA Pecce

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAUL ANCHONDO, AKA Pecce,
Defendant - Appellant.
No. 13-30344
D.C. No. 2:12-cr-00062-RSL-19
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted December 11, 2014 **
Seattle, Washington
Before: McKEOWN, TALLMAN, and OWENS, Circuit Judges.
Raul Anchondo appeals the district court’s denial of his Motion to Enforce a
Plea Agreement and ineffective assistance of counsel claims. Anchondo argues
that his trial counsel, David Hammerstad, did not communicate his plea
FILED
DEC 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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agreement’s April 25th deadline, and asks this court to enforce the expired plea
agreement and find Hammerstad constitutionally ineffective based on his failure to
communicate the deadline.
First, the district court made a factual finding that Hammerstad did
communicate the plea agreement deadline to Anchondo, and this finding is not
clearly erroneous. United States v. Overton, 573 F.3d 679, 688 (9th Cir. 2009).
Despite the lack of live testimony, there was substantial documentary evidence
from which the district court could make a factual finding. Watts v. United States,
841 F.2d 275, 277 (9th Cir. 1988); Williams v. Woodford, 306 F.3d 665, 688–89
(9th Cir. 2002) (even when credibility is at issue, if the evidence in the record fully
presents relevant facts and live testimony would not alter the court’s view of the
record, no evidentiary hearing is required). The written record included affidavits
by Anchondo, Hammerstad, the prosecutor who negotiated the plea agreement, and
Anchondo’s newly appointed counsel. The record also included a multitude of
emails exchanged between Hammerstad and the negotiating prosecutor during the
relevant period that explicitly state the plea agreement’s deadline. Even
Hammerstad’s written notes indicated he communicated that “time was of the
essence” to Anchondo.
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Based on this credibility determination that Anchondo’s trial attorney did
communicate the plea agreement’s deadline, the court properly concluded that
Anchondo’s untimely acceptance did not create an enforceable plea agreement.
United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001) (noting that plea
agreements are evaluated under contract law); Restatement (Second) of Contracts,
§§ 36, 41(1) (1981).
Second, Anchondo failed to show deficient performance and/or prejudice in
his ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S.
668, 694 (1984). Although, “as a general rule, we do not review challenges to the
effectiveness of defense counsel on direct appeal,” here, “the record on appeal is
sufficiently developed to permit determination of the issue.” United States v.
Rahman, 642 F.3d 1257, 1259–60 (9th Cir. 2011) (citing United States v.
Jeronimo, 398 F.3d 1149, 1155–56 (9th Cir. 2005)).
Anchondo asserts deficient performance because Hammerstad (1) did not
specifically tell Anchondo that the government’s offer would lapse on April 25th,
(2) did not effectively communicate the contractual consequences of making a
counteroffer, and (3) did not monitor his email Friday evening, April 26th, and
convey Anchondo’s acceptance to the prosecutor soon after Anchondo’s 7:19 p.m.
email.
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Given the district court’s factual finding that Hammerstad did communicate
the April 25th deadline, no deficient performance can be established on this basis.
Next, assuming Hammerstad did not explain to Anchondo that making a
counteroffer would effectively void the prosecutor’s initial offer, Anchondo cannot
show prejudice where the prosecutor rejected Anchondo’s counteroffer but then
put the original plea back on the table. Finally, even if Hammerstad provided
ineffective assistance by not monitoring his email the evening of Friday, April
26th, Anchondo cannot show that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
The prosecutor expressly stated that had Hammerstad called him at 7 p.m. Friday
evening, he would have rejected Anchondo’s acceptance as untimely.
AFFIRMED.
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