NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOSEPH CHRISTOPHER BIRDTAIL, 

Defendant-Appellant.

No. 17-35824 

D.C. Nos. 4:16-cv-00020-BMM 

4:13-cr-00032-BMM-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, District Judge, Presiding

Argued and Submitted October 11, 2018

Seattle, Washington

Before: PAEZ and BEA, Circuit Judges, and ROYAL, ** District Judge.

Defendant-Appellant Joseph Birdtail appeals the district court’s denial of his 

amended petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 

§ 2255. The district court issued a certificate of appealability on the issues of 

whether the performance of Birdtail’s original counsel or the performance of 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable C. Ashley Royal, Senior United States District Judge 

for the Middle District of Georgia, sitting by designation.

FILED

OCT 30 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-35824 

Birdtail’s sentencing counsel caused him prejudice under Hill v. Lockhart, 474 

U.S. 52 (1985). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We 

review a district court's denial of a § 2255 motion de novo, United States v. Reves, 

774 F.3d 562, 564 (9th Cir. 2014) (citation omitted), and we affirm.

Birdtail argues that his original counsel was ineffective in grossly 

miscalculating his possible sentencing guideline range, and that without this error, 

he would have proceeded to trial. To assert a successful claim of ineffective 

assistance of counsel in the context of a guilty plea, “the defendant must show that 

counsel’s representation fell below an objective standard of reasonableness.” Hill,

474 U.S. at 57 (internal citation and quotation omitted). The defendant must also 

show “that there is a reasonable probability that, but for counsel’s errors, he would 

not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

Here, regardless whether counsel’s representation fell below an objective 

standard of reasonableness, Birdtail’s claim fails because he did not move to 

withdraw his guilty plea after he was informed of the correct sentencing guideline 

range. Before his original sentencing date, Birdtail was given a copy of his 

Presentence Investigation Report (“PSR”) and realized that the sentencing 

guideline range he faced was significantly higher than the range his counsel told 

him would apply. As a result, the attorney-client relationship deteriorated, and 

counsel filed a motion to withdraw. The district court held a hearing on the motion, 
3 17-35824 

appointed Birdtail new counsel, and rescheduled sentencing. Despite this 

process—in which the trial court gave him ample opportunity to move to withdraw 

his plea—Birdtail never moved to withdraw his guilty plea. He therefore cannot 

show that but for his counsel’s errors he would not have pleaded guilty and 

proceeded to trial.

Additionally, Birdtail argues that both original and sentencing counsel were 

ineffective in not advising him to withdraw his guilty plea. As previously 

discussed, Birdtail cannot show prejudice, as he chose to proceed to sentencing 

after being informed of the actual guideline range. Moreover, recommending

against a trial on charges of sexually abusing a child was hardly unwise. Given the 

evidence against Birdtail, recommending against a plea withdrawal was not just 

within the “wide range of reasonable professional assistance;” it was “sound trial 

strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984).

AFFIRMED.