FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLAUDIO UCHE DIBE,

Defendant-Appellant.

No. 13-50515

D.C. No.

2:09-cr-01099-DSF-1

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

December 9, 2014—Pasadena, California

Filed January 13, 2015

Amended February 11, 2015

Before: Ronald Lee Gilman,* Susan P. Graber, and

Consuelo M. Callahan, Circuit Judges.

Order;

Opinion by Judge Gilman

* The Honorable Ronald Lee Gilman, Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. DIBE

SUMMARY**

Criminal Law

The panel affirmed a sentence in a case in which the

defendant appealed on the ground that his below-Guidelines

sentence would have been even lower if the district court had

considered his ineffective-assistance-of-counsel claim as a

mitigating factor under 18 U.S.C. § 3553(a).

The panel held that ineffective assistance of counsel is not

within the enumerated § 3553(a) sentencing factors because

it does not fall under the “nature and circumstances of the

offense,” and does not reflect either the “history and

characteristics of the defendant” or the need for the sentence

“to promote respect for the law.”

The panel therefore concluded that the district court’s

failure to consider ineffective assistance of counsel as a

sentencing factor was not procedural error, and that the

below-Guidelines sentence is substantively reasonable.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. DIBE 3

COUNSEL

Edward M. Robinson (argued), Law Office of Edward M.

Robinson, Torrance, California, for Defendant-Appellant.

Andre Birotte, Jr., United States Attorney, and Robert E.

Dugdale and Jeff Mitchell (argued), Assistant United States

Attorneys, Los Angeles, California, for Plaintiff-Appellee.

ORDER

The Request to Strike Appellant’s District Court

Attorney’s Name From the Opinion and Subsequent

Publication is GRANTED.

The opinion filed on January 13, 2015, and published at

2015 WL 151586, is amended by the opinion filed

concurrently with this order. The time for filing petitions for

rehearing and for rehearing en banc shall remain the same

from the January 13, 2015, original filed date of the opinion.

OPINION

GILMAN, Circuit Judge:

In 2012, Claudio Uche Dibe pleaded guilty to 15 counts

of wire fraud without reaching a plea agreement with the

government. The district court sentenced him to 120 months

in prison, which was below the appropriate U.S. Sentencing

Guidelines range. Dibe now appeals on the ground that his

sentence would have been even lower if the district court had
4 UNITED STATES V. DIBE

considered Dibe’s ineffective-assistance-of-counsel claim as

a mitigating factor under 18 U.S.C. § 3553(a). For the

reasons set forth below, we AFFIRM the judgment of the

district court.

I. BACKGROUND

A. Underlying offense

For years, Dibe was part of a scheme to defraud victims

through false and fraudulent pretenses. Coparticipants in

Nigeria contacted individuals in the United States by email

and telephone, falsely telling them that they had won a lottery

or were named in an inheritance. Dibe represented himself as

diplomat “John Brown” and told the victims that they needed

to send money for fees and costs before they could receive

the promised lottery prize or inheritance.

The victims’ money, however, was kept by Dibe and his

coparticipants for their own benefit. Records reflect that

more than one million dollars was collected in wire transfers

from the victims. Dibe’s conduct resulted in his being

charged in 2009 with 15 counts of wire fraud, in violation of

18 U.S.C. § 1343.

B. Plea negotiations and guilty plea

The government and Dibe engaged in plea negotiations

beginning in 2011, with the government making him multiple

plea offers that were never accepted. On May 18, 2012, the

government extended what was ultimately its last proposed

plea agreement. Dibe contends that the proposed plea

stipulated a total offense level of 27 and a criminal-history

category of I, which would have resulted in a Sentencing
UNITED STATES V. DIBE 5

Guidelines range of 70 to 87 months of imprisonment. The

plea agreement in the record, however, appears to lay out a

total offense level of 30, which, when combined with a

criminal-history category of I, results in a Guidelines range of

97 to 121 months. Although the exact Guidelines range

under the last proposed plea agreement is unclear from the

record, both parties agree that it was lower than the 151- to

188-month range that the district court ultimately adopted.

The two sides never reached a deal because Dibe failed to

accept the May 18, 2012 proposed plea agreement before the

government’s offer expired. Due to a fast-approaching trial

date, the government’s offer expired one week after it was

communicated, and Dibe did not sign the proposed plea

agreement until May 29, 2012. Dibe’s prior counsel

presented the proposed agreement to his client and explained

that it was Dibe’s choice whether to accept it. According to

Dibe’s present counsel, “[b]ecause the tremendous benefits of

the plea agreement were not explained, [Dibe] delayed

signing this most favorable plea agreement.” The

government declined Dibe’s late-tendered acceptance.

Instead, Dibe pleaded guilty without any agreement in

July 2012. During the hearing before the district court, Dibe

acknowledged that he had reviewed the Guidelines with his

counsel and that he also understood how the various elements

and factors would be used to determine his sentence. Dibe

also acknowledged his understanding that, regardless of the

ultimate Guidelines range, the court could sentence him to up

to 20 years in prison, the statutory maximum.

In response to the district court’s question about whether

an open guilty plea was in Dibe’s best interests, his counsel

stated: “Now that the plea agreements that [have] been
6 UNITED STATES V. DIBE

offered have been . . . technically rejected by Mr. Dibe, it is

my opinion and Mr. Dibe[’s], as well as his family[’s], [that]

the best thing for him would be to do an open plea.” Finally,

through several different formulations of the same question,

the court confirmed that Dibe was satisfied with his counsel’s

representation. Dibe then proceeded to plead guilty to the 15

counts as charged in the indictment.

C. Sentencing

The Presentence Report (PSR) calculated a total offense

level of 34 and a criminal-history category of I, resulting in

a Guidelines range of 151 to 188 months of imprisonment. 

The government recommended that Dibe be sentenced to 151

months in prison, to be followed by three years of supervised

release, and that he pay restitution of $1,079,445.18 and a

mandatory special assessment of $1,500.

In December 2012, the district court relieved Dibe’s

original counsel at Dibe’s request, in which his counsel also

joined. The court subsequently appointed an attorney from

the indigent-defense panel as Dibe’s replacement counsel. 

Dibe’s sentencing hearing was then continued several times

at his request. During this time, Dibe and his present counsel

considered the initiation of an ineffective-assistance-ofcounsel claim regarding Dibe’s prior counsel, but no such

motion was ever filed.

In his sentencing memorandum filed in September 2013,

however, Dibe argued that his prior counsel had been

ineffective and that, as a result, the court should “vary his

sentence downward to a reasonable sentence of less than 70

months.” He asserted that this is the range that he would

have faced had his prior counsel effectively explained to him
UNITED STATES V. DIBE 7

“how the Guidelines apply to his case vis-a-vis the most

favorable plea agreement and an open plea, and had he been

made aware of the manner in which his cooperation under

U.S.S.G. [§] 5K1.1 could have provided leniency.” In its

reply, the government countered that ineffective assistance of

counsel is not a proper sentencing factor and that, in any

event, Dibe’s prior counsel had not been ineffective.

Dibe appeared before the district court for his sentencing

hearing in October 2013. At the hearing, Dibe’s counsel

urged the court to consider the alleged ineffective assistance

of prior counsel as a mitigating factor—specifically, as part

of “the nature and circumstances of the offense and the

history and characteristics of the defendant” and “the need for

the sentence imposed . . . to promote respect for the law.” 

See 18 U.S.C. § 3553(a)(1), (a)(2)(A). The court instead

agreed with the government that ineffective assistance of

counsel should not be considered at sentencing:

The Court does not agree that this is a

factor to be considered under the 3553(a)

factors as written. It’s not the nature and

circumstances of the case; it’s the nature and

circumstances of the offense. And ineffective

assistance of counsel, even if it did occur, is

not, in my view, a part of the nature and

circumstances of the offense.

The court did, however, acknowledge the difficulty of

“put[ting] out of one’s mind the argument that counsel has

made, again, even without conceding or agreeing that prior

counsel was ineffective.”
8 UNITED STATES V. DIBE

Nevertheless, the district court emphasized that, even if

Dibe had timely accepted the government’s proposed plea

agreement, the court would not have been bound by its terms:

There is no requirement that the Court

determine its ultimate sentence bycomparison

to a plea agreement the defendant did not

timely accept. Even if the defendant had

accepted it, there certainly was no guarantee

that the Court would go along with any

recommendation by the government, and the

Court generally believes that the guidelines

range for this type of crime is often too low.

The court further added that it “would most certainly have

calculated a higher range than the one suggested by the plea

agreement.”

In the end, the district court adopted the PSR’s Guidelines

calculation, which set the range at 151 to 188 months of

imprisonment. The court, in considering the § 3553(a)

sentencing factors, restated that it was “not inclined to vary

downward from the properly-calculated guidelines range

based on the claims of ineffective assistance alone.”

Although the district court did not find anything about

Dibe’s crime to be “particularly mitigating,” it ultimately

concluded that “a sentence somewhat lower than the

guidelines range is appropriate” because “the guidelines

range, especially for someone with Mr. Dibe’s history and

background and age, just does seem more than is reasonable

and sufficient and somewhat greater than necessaryto comply

with the purposes stated in [§] 3553(a).” The court

accordingly sentenced Dibe to 120 months of imprisonment,
UNITED STATES V. DIBE 9

to be followed by three years of supervised release, and

ordered Dibe to pay $1,079,445.18 in restitution and a special

assessment of $1,500.

II. ANALYSIS

A. Standard of review

A district court’s sentencing decisions are reviewed under

the abuse-of-discretion standard. Gall v. United States,

552 U.S. 38, 51 (2007). On appeal, “only a procedurally

erroneous or substantively unreasonable sentence will be set

aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (citing Rita v. United States, 551 U.S. 338, 341

(2007)). We first consider whether the district court

committed a significant procedural error, and then we

consider whether the sentence is substantively reasonable. Id.

(citing Gall, 552 U.S. at 51).

Procedural errors include “failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence—

including an explanation for any deviation from the

Guidelines range.” Gall, 552 U.S. at 51; see also Carty,

520 F.3d at 993. When reviewing for substantive

reasonableness, we consider the totality of the circumstances. 

Carty, 520 F.3d at 993.
10 UNITED STATES V. DIBE

B. The district court did not err when it declined to vary

downward based on Dibe’s ineffective-assistance-ofcounsel claim

Dibe seeks a limited remand “that affirms the district

court’s authority to exercise its discretion and consider

appellant’s ineffective assistance of counsel argument in

full.” He claims that the district court erred in (1) its belief

that it lacked the authority to consider ineffective-assistanceof-counsel claims at sentencing, and (2) its failure to consider

such a claim as part of the complete history and

characteristics of the defendant under 18 U.S.C. § 3553(a)(1)

and the mandate to promote respect for the law under

§ 3553(a)(2)(A). We conclude, however, that neither claim

has merit.

1. Ineffective assistance of counsel is not a § 3553(a)

sentencing factor

Dibe cites United States v. Rivera-Sanchez, 222 F.3d

1057 (9th Cir. 2000), to support his proposition that “a district

court does have the authority to consider an ineffective

assistance of counsel claim at sentencing.” But the court in

Rivera-Sanchez actually declined to reach the merits of that

question because “the district court’s decision not to depart

downward was discretionary and not based on its belief that

it did not have the authority to do so.” Id. at 1064. 

Specifically, “[t]he fact that the district court stated that it felt

there was no ‘basis’ for a downward departure and that a

departure was ‘not warranted’ does not indicate that the court

believed it lacked authority to depart downward for

ineffective assistance of counsel.” Id. at 1064–65 (citing

United States v. Robinson, 958 F.2d 268, 272 (9th Cir.

1992)).
UNITED STATES V. DIBE 11

This court has in fact answered in the negative when

directly confronted with the question whether ineffective

assistance of counsel is a proper sentencing factor. In United

States v. Crippen, 961 F.2d 882, 885 (9th Cir. 1992), this

court held that ineffective assistance of counsel “is simply not

a ‘mitigating or aggravating’ circumstance or otherwise a

sentencing factor pursuant to § 3553(a).” See also United

States v. Basalo, 258 F.3d 945, 950 (9th Cir. 2001) (agreeing

with the Second Circuit that “ineffective assistance of counsel

may not be used as a mitigating factor”).

The fact that Crippen and Basalo were decided before

United States v. Booker, 543 U.S. 220 (2005), does not

change our analysis. In making the Guidelines advisory

instead of mandatory, Booker did not affect the scope of the

§ 3553(a) sentencing factors. See id. at 259 (“Without the

‘mandatory’ provision, the Act nonetheless requires judges to

take account of the Guidelines together with other sentencing

goals.” (citing 18 U.S.C. § 3553(a))). Sentencing courts, in

other words, no doubt have greater discretion post-Booker,

but that discretion is still tied to the § 3553(a) statutory

sentencing factors. See Kimbrough v. United States, 552 U.S.

85, 101 (2007) (“Booker permits the court to tailor the

sentence in light of other statutory concerns as well.”)

(emphasis added) (internal quotation marks omitted); see also

Pepper v. United States, 562 U.S. 476, 131 S. Ct. 1229, 1241

(2011) (“[D]istrict courts may impose sentences within

statutory limits based on appropriate consideration of all of

the factors listed in § 3553(a) . . . .”).

The district court, in declining to vary downward based

on Dibe’s allegations of ineffective assistance of counsel,

correctly concluded that ineffective assistance is not within

the enumerated § 3553(a) factors. As the court explained,
12 UNITED STATES V. DIBE

ineffective assistance does not fall under the “nature and

circumstances of the offense,” see 18 U.S.C. § 3553(a)(1)—in

this case, wire fraud. Nor does it reflect the “history and

characteristics of the defendant,” see id., or the need for the

sentence “to promote respect for the law,” see id.

§ 3553(a)(2)(A).

Dibe points to the Supreme Court’s holding that a

defendant’s post-sentencing rehabilitation is part of a

defendant’s “history and characteristics,” Pepper, 131 S. Ct.

at 1242, to support his argument that ineffective assistance of

counsel is likewise part of the “history and characteristics” of

a defendant. The Court in Pepper reasoned that “evidence of

[a defendant]’s conduct since his release from custody . . .

provides the most up-to-date picture of [that defendant]’s

‘history and characteristics.’” Id. (citing United States v.

Bryson, 229 F.3d 425, 426 (2d Cir. 2000) (per curiam)). 

Ineffective assistance of counsel at the plea-bargaining stage,

however, is distinguishable from a defendant’s postsentencing rehabilitation because Dibe’s ineffectiveassistance claim has nothing to do with his own conduct.

Similarly, Dibe’s argument that the district court’s failure

to vary downward based on ineffective assistance does not

“promote respect for the law” is incongruous with this court’s

previous interpretations of what promoting respect for the law

means. See United States v. Nielsen, 694 F.3d 1032, 1044

(9th Cir. 2012) (referencing, among other things, the

defendant’s failure to register as a sex offender and his

difficulties with supervision in discussing the need for the

480-month sentence to promote respect for the law); United

States v. Edwards, 595 F.3d 1004, 1010–11, 1015–16 (9th

Cir. 2010) (noting that the defendant’s pre-indictment

changes to his life showed respect for the law). Dibe’s
UNITED STATES V. DIBE 13

argument about promoting respect for the law is more

properly directed at preserving the integrity of judicial

proceedings, which—like ineffective assistance of counsel—

is not listed as a sentencing factor under § 3553(a).

This is not to suggest that sentencing courts are limited to

factors relating to a defendant’s personal history or to the

crime at issue. Such a position was in fact expressly rejected

by this court in United States v. Crippen, 961 F.2d 882, 885

(9th Cir. 1992) (holding that a sentencing court may depart

for other mitigating or aggravating circumstances unrelated

to a defendant’s personal history or to the crime in question). 

But “for a factor to be considered, it must be tied to some

penological purpose or legitimate sentencing concern

expressed in the Sentencing Reform Act.” Id. (emphasis in

original). Ineffective assistance of counsel is not so

expressed.

And contrary to Dibe’s argument, this court’s recent

decision in United States v. Steele, 733 F.3d 894 (9th Cir.

2013), does not call for a different result. The Steele court

adopted the reasoning of the Second Circuit’s decision in

United States v. Brown, 623 F.3d 104 (2d Cir. 2010), holding

that a district court may, at its discretion, consider an

ineffective-assistance-of-counsel claim prior to judgment. 

Steele, 733 F.3d at 897.

But Steele and Brown are distinguishable from the instant

case in two critical ways. First, both cases considered a

district court’s discretion to decide ineffective-assistance-ofcounsel claims in the context of specific motions: Steele filed

a prejudgment motion for a new trial, Steele, 733 F.3d at 897,

and Brown filed a presentencing petition for habeas relief

pursuant to 28 U.S.C. § 2241 (which the court construed as a
14 UNITED STATES V. DIBE

motion for a new trial after holding that a § 2241 motion is

not the proper vehicle with which to advance a presentencing

ineffective-assistance claim), Brown, 623 F.3d at 113 n.5. 

Dibe was unable to file a motion for a new trial because there

was never a trial in this case, but he could have filed—yet did

not—a motion to withdraw his guilty plea pursuant to Rule

11(d)(2)(B) of the Federal Rules of Criminal Procedure. 

Second, just because district courts have the discretion to

consider motions claiming ineffective assistance of counsel

before judgment or sentencing does not mean that they must

consider such claims as a sentencing factor. We therefore

conclude that the district court’s failure to consider

ineffective assistance of counsel as a sentencing factor was

not a procedural error, significant or otherwise.

2. A downward variance at sentencing is not the proper

remedy for the ineffective assistance of counsel

Ineffective assistance of counsel, unlike the enumerated

§ 3553(a) factors, is “a constitutional violation of a

defendant’s rights,” and such a violation “requires a remedy

specificallytailored to the constitutional error.” United States

v. Basalo, 258 F.3d 945, 951 (9th Cir. 2001) (quoting United

States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000))

(internal quotation marks omitted). As this court held in

Basalo, a downward departure or variance at sentencing is not

the appropriately tailored remedy for the ineffective

assistance of counsel:

“A finding that a convicted defendant has

received ineffective assistance of counsel

necessarily calls into question the validity of

the conviction. By contrast, the imposition of

a sentence (with or without a downward
UNITED STATES V. DIBE 15

departure) and the entry of judgment

necessarily assumes the validity of the

conviction. A downward departure on

ineffective assistance grounds is

impermissible because it simultaneously

assumes the validity of a defendant’s

conviction and conspicuously calls its validity

into doubt.”

Id. at 950 (quoting United States v. Bicaksiz, 194 F.3d 390,

398 (2d Cir. 1999)).

A more appropriate remedy for the ineffective assistance

of counsel would be to allow Dibe to withdraw his guilty

plea, or to require the government to re-extend its proposed

plea agreement. See Johnson v. Uribe, 700 F.3d 413, 426

(9th Cir. 2012) (holding that ineffective assistance rendered

during “the entire plea negotiation stage” would entitle the

defendant to a remedy returning him to the “pre-plea stage”),

amending and superseding 682 F.3d 1238 (9th Cir. 2012). 

Dibe, however, seeks neither remedy on appeal, and asks us

instead to remand for resentencing. Because we conclude

that the district court did not err, we decline to do so. Dibe

can raise any ineffective-assistance-of-counsel claim, which

is “generally inappropriate on direct appeal,” in a postconviction proceeding under 28 U.S.C. § 2255. See United

States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000).

C. Dibe’s below-Guidelines sentence is substantively

reasonable

Finally, Dibe challenges the substantive reasonableness

of his 120-month sentence. But his argument rests on the

same alleged procedural error discussed above—the district
16 UNITED STATES V. DIBE

court’s failure to consider his ineffective-assistance-ofcounsel claim at sentencing. Because we have concluded that

his argument is foreclosed by this court’s own precedent, we

see no reason to disturb the district court’s below-Guidelines

sentence in this case. We also “give due deference to the

district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance,” and will not reverse just

because we believe a different sentence is appropriate. 

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)

(quoting Gall v. United States, 552 U.S. 38, 51, 59–60 (2007)

(internal quotation marks omitted)).

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court.