United States of America v. Evangelos Dimitrios Soukas

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NOT FOR PUBLICATION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.
EVANGELOS DIMITRIOS SOUKAS,
Defendant - Appellant.
No. 08-35539
D.C. No. 2:07-cv-01738-JLR
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Federal prisoner Evangelos Dimitrios Soukas appeals from the district
court’s order denying his motion under 28 U.S.C. § 2255. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
FILED
SEP 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-35539 2
Soukas contends that his appellate counsel was ineffective because she did
not challenge the district court’s failure to calculate Soukas’ criminal history
category on direct appeal. In light of the district court’s comments at sentencing,
Soukas cannot show “a reasonable probability that he would have received a
different sentence” but for the district court’s failure to calculate his criminal
history category. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008)
(applying plain error analysis where counsel failed to object to procedural error at
sentencing). Accordingly, Soukas cannot show a reasonable probability that he
would have prevailed on direct appeal, and his ineffective assistance of appellate
counsel claim fails. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
AFFIRMED.

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