United States of America v. Joshua Kistler

* 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).
*** The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA KISTLER,
Defendant - Appellant.
No. 09-35968
D.C. Nos. 3:08-cv-70029-HA
3:05-cr-00217-HA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted November 3, 2010 **
Portland, Oregon
Before: ALDISERT, W. FLETCHER and FISHER, Circuit Judges.***
FILED
NOV 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Joshua Kistler appeals from the district court’s denial of his motion to
vacate, set aside and correct sentence under 28 U.S.C. § 2255, claiming ineffective
assistance of counsel. We affirm.
Kistler contends he received ineffective assistance of counsel because trial
counsel did not make adequate efforts to obtain the documents underlying the
victim’s claim that Kistler’s conduct caused her psychological injuries. But trial
counsel did make such efforts, by sending letters demanding that she be able to
review the relevant documents and by voicing concerns that the victim’s
psychological injuries were unrelated to Kistler’s conduct. Trial counsel could
have reasonably concluded that her concerns regarding the victim’s claimed
psychological harms were noted in the presentence report and would be resolved at
a later restitution hearing. Thus Kistler has not demonstrated that trial counsel’s
performance fell short of prevailing professional norms or was unreasonable under
the circumstances. See Strickland v. Washington, 466 U.S. 668, 688 (1984).
Kistler also argues that counsel’s allegedly deficient performance caused
prejudice at sentencing. He contends that because mandatory restitution was not
imposed, the statements offered by the victim’s mother at sentencing must have
been untrue. Kistler argues that competent counsel would have obtained and
presented documentation undermining these statements, thereby preventing the

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district court from taking them into account at sentencing. But the district court
was made aware, through the PSR, that the connection between Kistler’s conduct
and the victim’s claimed psychological injuries was not fully documented. Thus
the district court was able to give appropriate weight to the presentations made at
sentencing. Moreover, in the district court’s order denying defendant’s motion for
relief under 28 U.S.C. § 2255, the court accurately described and evaluated the
sentencing proceeding and confirmed that the sentence was based on the offense
conduct, not the presentations made at sentencing. Thus Kistler has not established
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694.
Because Kistler has neither demonstrated that trial counsel’s performance
was deficient nor that the alleged deficiency caused prejudice at sentencing, we
reject his ineffective assistance of counsel claim. Accordingly, we affirm the
district court’s denial of relief under 28 U.S.C. § 2255.
AFFIRMED.

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