1 The Clerk of the Court is directed to am end the official caption as shown above. 1 10-1536-cr United States v. Gonzalez-Montes
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

## SUMMARY ORDER
Rulings by summary order do not have precedenti al effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1 . When citing a summ ary order in a document filed with this court, a party must cite eith er the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Daniel Patrick Moynihan United States Courthou se, 500 Pearl Street, in the City of New York, 2 on the 28 thday of October, two thousand eleven. 3 4 PRESENT: 5 6 J OSÉ A. C ABRANES , 7 D EBRA ANN L IVINGSTON , 8 S USAN L. C ARNEY , 9 Circuit Judges

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 11 U NITED S TATES OF AMERICA , 12 13 Appellee, 14 15 -v.- No. 10-1536-cr 16 17 J OSÉ G ONZALEZ -M ONTES , 1 18 19 Defendant-Appellant

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 21 FOR APPELLANT: Sally Wasserman, New York, NY. 22 23 FOR APPELLEE: Elizabeth Riker, Assistant United 24 States Attorney (Richard S. 25 Hartunian, United States Attorney 26 for the Northern District of New 27 York, on the brief , and Elizabeth A. 28 Horsman, Assistant United States 29 Attorney, of counsel ), Office of the 30 United States Attorney for the 31 Northern District of New York, 32 Syracuse, NY

. 332 Appeal from a judgment of the United States District Court for the Northern District of New 1 York (Gary L. Sharpe, Judge ). 2
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4
DECREED that the judgment of the District Court be AFFIRMED

. 5 Defendant-appellant José Gonzalez-Montes appe als from a March 22, 2010 judgment of the 6 District Court for the Northern District of New York sentencing him principally to 41 months 7 imprisonment for violations of 8 U.S.C. § 1326(a) and (b). On appeal, Gonzalez-Montes argues that he 8 received ineffective assistance of counsel because his attorney did not argue for a sentence below the 9 Guidelines range, but instead requested a sentence at the bottom of the applicable Guidelines range. 10
BACKGROUND 11 Defendant-appellant Gonzalez-Montes, a citizen of Mexico and an undocumented alien, was 12 convicted after a guilty plea in the United States District Court for the Northern District of New York 13 of illegally reentering the United States after having been removed following conviction of domestic 14 violence against his wife, an aggravated felony. 15 Prior to sentencing, Gonzalez-Montes’s counsel filed a sentencing memorandum in which she 16 made several arguments in mitigation of the offense. First, the attorney pointed out that Gonzalez17 Montes had had no contact with the criminal just ice system between the completion of his sentence in 18 California and his arrest on the current charges. Sh e then explained that Gonzalez-Montes had originally 19
traveled from Mexico to Canada with the intent to return directly to Mexico, but had changed his mind 20 and entered the United States at the last moment—in other words, he had not set out on his trip from 21 Mexico with the intention of illegally entering the United States. She also presented the court with a 22 letter from Gonzalez-Montes’ wife, Veronica Reyes, in which Reyes recanted her allegations of domestic 23 abuse against Gonzalez-Montes, described her family’s difficulties since her husband’s departure, 24 explained that his mother was very ill, and begged the court for his immediate return. Counsel then 25 noted that Gonzalez-Montes was deeply remorseful for his actions. 26 Counsel further argued that, although Gonzalez-Montes would not contest the Guidelines range 27 calculated in the presentence report, the Guidelines themselves were no longer mandatory and to treat 282Although an ineffective assistance of counsel claim is usually more appropriately brought in an action commenced under 28 U.S.C. § 2255, see Massaro v. United States , 538 U.S. 500, 504 (2003), we revi ew it here at the request of the parties and because the record of the proceedings below contains all of the information we require to decide petitioner’s claim. See United States v. Matos , 905 F.2d 30, 32 (2d Cir. 1990) (a claim of ineffective assistance of counsel may be decided on direct appeal “when it s resolution is ‘beyond any doubt’ or to do so would be in the interest of justice” (quoting United States v. Aulet , 618 F.2d 182, 186 (2d Cir.1980))). 3 them as such would constitute grave procedural error. Instead, she argued, the court should impose a 1 sentence that was sufficient but not greater than necessary to achieve the goals of sentencing. She ended 2 her memorandum with a request that the court impose a sentence at the bottom of the applicable 3 Guidelines range. 4 At sentencing the court adopted the presen tence report without objection from either side, 5 granted a one-level downward departure on the government’s motion, and calculated Gonzalez6 Montes’s Guidelines range of imprisonment at 41-51 months. The court then heard argument from 7 defense counsel and the prosecution, as well as anallocution from Gonzalez-Montes himself. After 8 evaluating the required sentencing factors under 18 U.S.C. § 3553(a), the court pronounced sentence, 9 explaining that while “there is nothing about [Gonzalez-Montes’s] conduct that would cause me to 10 impose a sentence beyond the minimum under the guidelines,” he saw “no reason . . . to do anything 11 when I evaluate the sentencing factors in the scheme Congress has imposed other than to adopt the 12 guideline findings as the reasonable sentence.” He then imposed a 41-month term of imprisonment, 13 which represented the bottom of the applicable Guidelines range. 14 This appeal followed. 15
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DISCUSSION 18
A. The Strickland Standard 19 Gonzalez-Montes argues on appeal that he received ineffective assistance from his counsel 20 when she failed to specifically request that the court impose a sentence below the range suggested by the 21
Guidelines. 2A claim of ineffective assistance of counsel is evaluated under the standard set forth in 22 Strickland v. Washington , 466 U.S. 668 (1984). Generally, to prevail on such a claim, a petitioner must 23 demonstrate (1) that “counsel’s representation fell below an objective standard of reasonableness,” id. at 244 688, and (2) that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result 1 of the proceeding would have been different,” id. at 694. For the purpose of this order we focus only on 2 the second prong of the Strickland test. See id. at 697 (courts may focus first on the prejudice prong when 3 it is “easier to dispose of an ineffectiveness clai m on the ground of lack of sufficient prejudice”); see also 4 Farrington v. Senkowski , 214 F.3d 237, 242 (2d Cir. 2000) (courts need not resolve the first Strickland prong 5 if the second is more readily resolved). 6
B. Application of the Strickland Standard to the Appellant 7 Gonzalez-Montes’s counsel presented numerous arguments in mitigation of his offense, as well 8 as a letter from his wife begging the court for his i mmediate release. Counsel also reminded the court 9 that to treat the Guidelines as mandatory would be grave procedural error, see United States v. Cavera, 550 10 F.3d 180, 190 (2d Cir. 2008) ( en banc ), and argued that the court was required to make an individualized 11 assessment of the § 3553(a) factors prior to imposing a sentence that, in the court’s judgment, would be 12 “sufficient, but not greater than necessary” to achi eve the goals of sentencing. Although counsel did 13 not specifically request a below-Guidelines sentence, the sentencing court could not have believed, 14 based upon counsel’s presentation, that Gonzalez-Montes did not want the lowest possible sentence. 15 We therefore determine that counsel’s pe rformance did not prejudice the appellant. 16
CONCLUSION 17 We have reviewed the defendant’s arguments on appeal and find that they are without merit. 18 The judgment of the District Court is AFFIRMED. 19
20 FOR THE COURT, 21 Catherine O’Hagan Wolfe, Clerk of Court 22
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