F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

C L A U D I O U C H E D I B E , D efendant-Appellant

. No. 13-50515

D.C. No. 2:09-cr-01099-DSF

- 1

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Central District of California Dale S. F ischer, District J udg e, Presiding

Arg ued and Submitted December 9, 2014—Pasadena, California

F iled J anuary

13, 2015 Amended F ebruary

11, 2015

B efore: Ronald L e e Gilman, * Susan P. Graber, and Consuelo M. Callahan, Circuit J udg es.

Order; Opinion by

J udg e Gilman

* T h e Ho n orab l e Ro n ald L ee Gilm an , Sen io r Un ited States Circu it J u dg e f o r th e Six th

Circu it, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. D I B E 2

SUMMARY * *

Crim inal Law

The panel affirmed a sentence i n a case in w hich the defendant appealed on the g round that his below-Guidelines
sentence would have been e ven lower if the district c ourt h ad considered h is ineffective-assistance-of-counsel claim as a mitig ating factor under 18 U.S.C. § 3553(a).

The panel held that ineffective a ssistance o f counsel is not within the enumerated § 3553(a) sentencing factors b e c ause it do e s not fall u nder the “nature and circumstances of the offense,” and d oes not ref l e c t either the “history a nd characteristics of the defendant” or the need for the sentence “to promote respect for the law.”

The p a nel therefore concluded that the district c o u rt’s failure to consider ineffective assistance of counsel as a

s e n tencing factor was not p rocedural error, and that t h e below-Guidelines sentence is substantively reasonable.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. D I B E 3

COUNSEL

Edward M. Robinson (arg ued), L aw Office of E d w a r d M. Robinson, Torrance, California, for Defendant-Appellant.

Andre B irotte, J r., United States Attorney
, and Robert E. Dug dale and J eff Mi t chell (arg ued), Assistant United States Attorney s, L os Ang eles, California, for Plaintiff-Appellee.

ORDER

The Request to Strike A ppellant’s District Court Attorney ’s Name F rom the Opinion and Sub s e q u ent Publication is G RANTED

.

The o pinion filed on J anuary 13, 2 015, and published at 2015 W L 151586, is amended by t he opinion filed concurrently w ith this order. The time for filing petitions for rehearing and for rehearing en banc shall remain the same from the J anuary 13, 2015, o r ig inal filed date of the opinion.

OP INION

GI L MAN, Circuit J udg e:

I n 2012, Claudio Uche Dibe plea ded g uilty to 15 c ounts of wire f raud without reaching a plea a gr e e m ent with the
g overnment. The district court sentenced him to 120 months in prison, which was below the appropriate U.S. Sentencing Guidelines rang e. Dibe now a ppeals on the g rou n d t h at his
sentence would have been even lower if the district c ourt h adU N I T E D S T A T E S V

. D I B E 4

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

a mitig ating factor under 18 U.S.C. § 3553(a). F or the

reasons set forth below, we AF F IRM the judgm en t of the district court.

I. BACK G R OUND

A. Underlying of

f ense

F or y ears, Dibe was part of a scheme to defraud v ict i m s throug h false and f

raudulent pretenses. Copart i c i pants in Nig e r i a 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 a s diplomat “J ohn B rown” and told the victims that they needed
to send money for fees and costs before th e y c o u l d receive the promised lottery priz e or inheritance.

The victims’ money , however, was kept by Dibe and his coparticipants for their own benefit. Records reflect that

more than one million d ollars was collected in wire transfers from the victims. Dibe’s conduct resulted in his being charg ed in 2009 with 15 counts of wire fraud, in violation o f 18 U.S.C. § 1343.

B. P lea negotiations and guilty plea

The g o v ernment and Dibe eng ag ed in plea neg o tiations beg inning in 2011, with the g overnment making him multiple plea offe r s t hat were never accepted. On May 18, 2 012, the
g overnment ex tended what w as ultimately its last p roposed plea ag reeme n t. Dibe contends that the proposed plea stipulated a tota l o ffense level of 27 and a criminal-history categ ory of I
, which would h a v e r es ulted in a SentencingU N I T E D S T A T E S V

. D I B E 5

Guidelines rang e of 7 0 to 8 7 months of imprisonment. The plea ag reement in the record, however, appears to lay out a total offense level of 30, which, when comb i n ed with a criminal-history c ateg ory of I
, results in a Guidelines rang e o f 97 t o 121 months. A lthoug h the ex act Guidelines r ang e under the last proposed plea ag reement is unclear fr o m the record, both par ties ag ree that it was lower than the 151- to 188-month rang e that the district court ultimately adopted.

The two sides never reached a d eal because Dibe failed to accept the May 18, 2012 proposed plea ag reement b efore the
g overnment’s offer ex pired. Due to a fast-approaching trial date, the g overnment’s offer ex pired one week after it was communica t e d
, and Dibe did not sig n the proposed plea
ag reement until May 29
, 2012. Dibe’s prior counsel presented the proposed ag reement to his client and ex p lained that it was Dibe’s choice whether to accept it. According to D i b e’s present counsel, “[ b] ecause the tremendous benefits of
t h e plea ag r eement were n ot ex plained, [ Dibe] delay ed sig ning this most f

a v o r a b l e plea ag reement.” The
g overnment declined Dibe’s late-tendered acceptance.

I nstead, Dibe pleaded g u ilty without any ag reement in J uly 2 012. During the hearing before the district court, Dibe acknowledg ed that he had reviewed the Guidel i n e s w ith his counsel and that h e a lso understood how the various elements and factors would be used to de t ermine his sentence. Dibe also a cknowledge d his u n derstanding that, reg ardless o f the ultimate Guidelines rang e, the court c ould sentence him to up to 20 y ears in prison, the statutory max imum.

I n response to the district court’s question about whether

an open g uilty pl e a w a s in Dibe’s best interests, his counsel stated: “Now that the plea ag r eements that [have] beenU N I T E D S T A T E S V

. D I B E 6

offered have b een

. . . technically rejected by Mr. Dibe, it is
my opinion a

nd Mr. Dibe[ ’ s]
, as well as his family [ ’s]
, [ that] the best thing f

or him would be to do an open plea.” F inally
, throug h several different formulations of the same question, the court confirmed that D ibe was satisfied with his counsel’s representation. Dibe then proceeded to plead g uilty to the 15 counts as charg ed in the indictment.

C. Sentencing

Th e Presentence Report (PSR) calculated a total offense le v e l o f 3 4 a

nd a criminal-history categ ory of I
, resulting in

a Guidelines rang e o f 1 5 1 to 188 months of imprisonment. The g o vernment recommended that Dibe be sentenced to 151 months in prison, to be followed by three y ears of supervised release, and that he pay restitution of $ 1,079,445. 1 8 a nd a mandatory

special assessment of $1,500.

I n December 2012, the district court relieved Dibe’s orig inal counsel at D ibe’s request, in which his counsel also joined. The court subsequently a p pointed an attorney from the indig ent-defense panel as Dibe’s repl a ce ment counsel. Dibe’s sentencing hearing was then continued several times
at h is r equest. During this time, Dibe and his present counsel considered the initiation of an ineffective-assistance-ofcounsel claim reg arding D ibe’s prior counsel, b u t no such motion was ever filed.

I n his sentencing memorandum filed in September 2013, however, Dibe arg ued that hi s p r i or counsel had been ineffective and that, as a resu l t, the court should “ vary his
sentence downward to a r ea s o n a b le sentence o f less than 70 months.” He asserted tha t t h is is the r ang e that he would have faced had his prior counsel e f fectively ex plained to himU N I T E D S T A T E S V

. D I B E 7

“how the Guidelines apply to h is case vis

- a-vis the most favorable plea ag reement and an open plea, and had he been made aware of the manner in which his cooperation under U.S.S.G. [ §] 5K1.1 coul d have provided leniency .” I n its reply
, the g overnment countered that ineffective assistance o f counsel is not a proper sentencing factor a nd that, in any event, Dibe’s prior counsel had not been ineffective.

Dibe a ppeared before the district court for his sentencing hearing in O ctober 2 013. At the h earing
, Dibe’s counsel
urg ed the court to consider the alleg e d ineffective assistance of prior counsel as a mitig ating factor—sp e ci f ically
, as part of “the natu re a n d circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence imposed

. . . to promote respect for the l aw.” See 18 U.S.C. § 3553(a)(1), (a)(2)( A )

. T h e court instead
ag reed with the g overnment that inef fective assistance o f counsel should not be considered at sentencing :

The Court does not ag ree that this is a fact o r t o b e considered under the 3553(a) factors as writt e n

. I t’s not the nature a nd

c i r c u mstances o f the case; it’s the nature a n d circumstances o f the offense. And ineffective

a ssistance of counsel, e ven if it did o ccur, is not, i n m y v iew, a part of the nature a nd circumstances of the offense.

The court did, however, a c knowledg e the difficulty o f “put[ ting ] out of one’s mind t h e a rg ument that counsel has made, ag ain, even without conceding or ag reeing that prior counsel was ineffective.”U N I T E D S T A T E S V

. D I B E 8

Nevertheless, the di s t r i c t court emphasiz ed that, even if Dibe had timely accepted the g overnment’s p roposed plea
ag reement, the court would not have been bound by its terms:

There i s no requirement that the Court determine its ultimate s e ntence by comparison
to a plea ag r eement the defendant d i d not timely accept. Even if the defendant h ad accepte d i t , there certainly was no g uarantee that t h e C ourt would g o along with any

re c o mmendation by the g overnment, and the Court g ene rally believes that the g uidelines
rang e for this ty

pe of crime is often too low.

The c ourt further added that it “would most c e r tainly have

ca l c ulated a hig her rang e than the one sug g ested by the plea
ag reement.”

I n the end, the district court adopted the PSR’s Guidelines calculation, which set the rang e a t 151 to 188 months o f impriso nment. The court, in considering the § 3553(a) sentencing factors, restated that it was “not inclined to vary downward from the pro p erly -calculated g uidelines r ang e based on the claims of ineffective assistance alone.”

Althoug h the district c o urt did not find any thing about Dibe’s crime to be “particularly mitig ating ,” it ultimately concluded that “a sentence somewhat lower than the
g uidelines ra n g e is appropriate” because “the g uidelines
rang e , especially f

or someone with Mr. Dibe’s his t o ry a nd backg round and ag e, just does seem more than is reasonable and sufficient and somewhat g r e a ter than necessary to comply with the purposes stated in [ §] 3553(a).” The court according ly sentenced Dibe to 120 months of imprisonment,U N I T E D S T A T E S V

. D I B E 9

to be f o llowed by three y ears of supervis ed release, a nd 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 stand a r d

. Gall v

. United States
, 552 U .S. 38, 51 ( 2 0 07). On appeal, “only a procedurally

erroneous or substantively unreasonable sentence will be set aside.” U

nited S t a t e s v. Carty
, 520 F .3d 984, 993 (9th Cir. 2008) (citin g R i ta v. United S tates , 551 U.S. 338, 341 (2007)). W e first consider whether the district court committed a sig nificant pro c e d u ral error, and then we consider whether the sentence is substantively reasonable. Id. (citing Gall , 552 U.S. at 51).

Procedural errors include “ failing t o calculate (or improperly calculating ) the Guideline s r a ng e, treating the Guidelines as mandatory
, failing to c o n s ider the § 3553(a) factors, selecting a sentence b ased on clearly erroneous facts,

or f ailing to adequately ex plain the chosen sentence— i n c l u ding an ex planation for a ny deviation from th e Guidelines rang e.” Gall
, 552 U.S. at 51; see also Carty
, 520 F .3d at 993. W hen r eviewin g for substantive reasonableness, we consider the totality o f the circumstances. Carty , 520 F .3d at 993.U N I T E D S T A T E S V

. D I B E 10

B. The district court did not err w hen it declined to vary dow nw ard based on D ibe’s inef f e ctive-assistance-of

counsel claim

Dib e seeks a limited remand “that affirms the district court’s a uthority to ex er ci s e its d iscretion and consider appellant’s ineffective as sistance of counsel arg ument in full.” H e claims that the district court erred in ( 1) its belief that it lacked the authority to consider ineffective-assistanceof-counsel claims at sentencing
, a nd ( 2) its failure to consider such a claim as p art o f the complete history a nd characteristics of the defendant under 1 8 U.S.C. § 3553(a)(1)

a n d t he mandate to p romote r espect for the law un d e r § 3553(a)(2)(A). W e conclude, however, that n e ither claim has merit.

1. Ineffective a ssistance of counsel is not a § 3553(a) sentencing factor

Dibe cites United Stat e s v. Rivera-Sanchez
, 222 F .3d 1057 ( 9th Cir. 2000), to support his proposition that “a district
court does have the authority to c o nsider a n ineffective assistance of counsel clai m a t sentencing .” B ut the court in Rivera-Sanchez actuall y declined to reach the merits o f that question bec a u s e “the district court’s decision not to depart downward w as discreti onary and not based on its belief that i t did n ot h ave the authority to do so.” Id. at 1 0 6 4

. Specifically
, “[ t] h e fact that the district court stated that it felt there was no ‘ b a s is’ f

or a downward departure and that a departure w as ‘not warranted’ does n ot indicate that the court believed it lacked authori t y t o depart downward for ineffective assistance of counsel.” Id. at 1064–65 (citing United States v. R obinson
, 958 F

. 2d 2 6 8
, 2 7 2 (9th Cir. 1992)).U N I T E D S T A T E S V

. D I B E 11

This court has in fact answered in the n eg ative when directly confronted wi t h the question whether ineffective assistance o f counsel is a proper sentencing f actor. I n United S t a tes v. Crippen
, 961 F .2d 882, 885 ( 9th Cir. 1992), t h i s court h eld that ineffective assistance of counsel “is simply not

a ‘mitig ating or ag g ravat ing ’ circumstance or otherwise a

s entencing factor p ursuant to § 3553(a).” See also U n i t e d States v. Basalo
, 258 F

. 3d 945, 950 ( 9th Cir. 2001) (ag reeing with the Second Circuit that “ineffective assistance of counsel
may not be used as a mitig ating factor”).

The fact that Crippen and Basalo were decided before Unite d S tates v. Booker
, 543 U.S. 220 (2005), does not chang e o ur analy s i s

. I n making the Guidelines advisory instead of mandatory
, B ooker d id not affect the scope of the § 3553(a) sentencing f

a c tors. See id. at 259 (“W it h o u t t he ‘mandatory ’ provision, the Act nonetheless requires judg es to take account of the Guidelines tog ether with other sentencing
g oals.” (citing 18 U.S.C. § 3553(a))). Sentencing courts, in other words, no doubt have g reater dis c r e tion post- Booker
, but that discretion is still tied to t h e § 3553(a) statutory sentencing factors. See Kimbrough v. United States
, 5 5 2 U.S. 85, 101 ( 2 0 0 7 ) (“

Booker permits the court to tailor the
sentence in lig ht of other statutory c oncerns as well. ”) (emphasis a d d ed) (internal quotation marks omitted); see also Pepper v. United States
, 562 U.S. 476, 131 S. Ct. 1 229, 1241 (2011) (“[ D] istrict courts may impose sentences within statutory limits b ased on appropriate consideration o f a l l o f the factors listed in § 3553(a) . . . .”).

The district court, in declining to vary downwa r d b a sed

on Dibe’s a lleg a tions of ineffective a ssistance of counsel, correctly conclud e d that ineffective assistance is not within the enumerated § 3553(a) f a c t o r s. As the court ex plained,U N I T E D S T A T E S V

. D I B E 12

ineffective assistance does not fall u nder the “nature a n d circumstance s o f the offense,” see 18 U.S.C. § 3553(a)(1)—in this c a s e , wi r e fraud. Nor does it reflect the “history a nd characteristics of the defendant,” see id.
, or the n ee d for the
sentence “to promote respec t f o r the law,” see id. § 3553(a)(2)(A).

Dibe p oints t o the Supreme Court’s holding that a defendant’s post-sentencing rehabilitation is p art of a defendant’s “ history and characteristics,” Pepper
, 131 S. Ct.
at 1242, to support h is arg ument that ineffective assistance o f counsel is likewise part of the “history and characteristics” o f

a defendant. T he Court in Pepper reasoned that “evidence o f [ a defendant ] ’s conduct since his release from c ustody

. . . provides the most up-to-date picture of [ th a t d e fendant] ’s ‘history and characteristics.’” Id. (citing United States v

. Bryson
, 229 F .3d 425, 426 (2d Ci r

. 2000) ( per curiam)). I neffective a ssistance of counsel at the plea-barg aining stag e , however, is disting uishable f rom a defendant’s postsentencing rehabilitation because Dibe’s ineffectiveassistance claim has nothing to do with his own conduct.

Similarly
, D ibe’s arg ument that the district court’s failure
to vary downward based o n ineffective assistance does not “promote respect for the law” is incong ruous with this court’s previous interpretations o f w hat promoting respect for the law

means. See United States v. Nielsen
, 694 F .3d 1 0 32, 1044 (9th Cir. 2012) ( referencing
, among other thing s, the defendant’s failure to reg ister as a sex offende r a n d h is difficulties with supervision in d iscussing the need f o r the 480-month sentence to promo t e respect for the law); United S t a tes v. Edwards
, 595 F .3d 1004, 1010–11, 1015–16 ( 9 t h Cir. 2010) (noting that the d efendant ’ s p re-indictment chang es to h is life showed r e s p e c t f or the law). Dibe’sU N I T E D S T A T E S V

. D I B E 13

arg ument about promot i ng r espect for the law is more properly directed at p r e s e rving the integ rity of judicial proceeding s, which—like ineffective assistance of counsel— is not listed as a sentencing factor under § 3553(a).

This is not to sug g est that sentencing courts are limited to factors relating to a defendant’s personal history o r to the crime at issue. Such a position was in fact ex pressly rejected by this court in United States v. Cri ppen , 961 F .2d 882, 885 (9th Cir. 1 992) (holding that a sentencing court may depart for oth e r mitig ating or ag g ravating circumstances unrelated
to a defendant’s personal history or to the crime in q uestion). Bu t “for a factor to b e considered, it must be tied to some penolog i cal p urpose o r leg itimate sentencing concern

ex p ressed in the Sentencing Reform A ct.” I d

. (emphasis in orig inal). I neffective ass i s t ance of counsel is not so

ex p ressed.

And contrar

y to Dibe’s arg ument, this court’s recent decision in United States v. Steele
, 73 3 F .3d 894 (9th Cir. 2013), does not c all f

or a d ifferent r esult. T h e S t e ele court adopted the r easoning of the Second Circu i t ’s decision in United S tates v

. B rown , 6 23 F

. 3d 104 (2d Cir. 2 010), holding that a district c ourt may , at its discretio n , c o n sider an ineffective-assistance-of-counsel claim prior to judg ment. Steele , 733 F .3d at 897.

B u t Steele and Brown are disting uishable from the instant

case in two critical way s. Fi rs t , both cases considered a district court’s discretion to decide ineffective-assistance-ofcounsel claims in the contex t of specific motions: Steele filed

a prejudg ment motion for a new trial, S teele
, 733 F .3d at 897, and B rown f

iled a p r esent e n c i n g petition for habeas relief pursuant to 28 U.S.C. § 2 241 (which the court construed as aU N I T E D S T A T E S V

. D I B E 14

motion for a new t r i a l a f

t e r holding that a § 2 2 41 motion is
not the proper v ehicle with which to advance a presentencing ineffective-assistance c laim), Brown
, 623 F .3d at 113 n

. 5. Dibe was unable to file a motion for a n ew trial because there

was never a trial in this case, b ut he could have filed—y e t did
not—a motion to w ithdraw h i s g uilty plea pursuant to Rule 11(d)(2)(B ) of the F ederal Rules of C riminal Procedure. Second, just bec a u s e d istrict courts have the discretion to consider moti o n s claiming ineffective a ssistance of counsel before judg ment or sentencing d o es not mean that they must consider such claims as a sentencing factor. W e t h e r efore

c o n clude that the district court’s failure to consid e r ineffective assis t a n c e of counsel as a sentencing factor was not a procedural error, sig n ificant or otherwise.

2. A downward v ariance at sentencing is not the proper

rem edy for the ineffective assistance of counsel

I neffective assistance o f counsel, u nli k e the enumerated § 3553(a) factors, is “a constitutional violation of a defendant’s rig hts,” and such a violation “requires a remedy specifically tailored to the constitutional error.” United States

v. Basalo
, 258 F .3d 9 4 5, 951 (9th Cir. 2 001) (quoting United States v. Ca rmichael
, 216 F .3d 2 24, 2 27 (2d Cir. 2000)) (internal quotation marks omitted )

. As this court held in Basalo
, a d ownward departure o r variance at sentencing is not the appropriately ta i l o red remedy f or the ineffective assistance of counsel:

“A finding that a c onvicted defendant has received in e ffective a ssistance of counsel necessarily calls into question the validity o f the conviction. B y contrast, the imposition o f

a sentence (with or without a downwardU N I T E D S T A T E S V

. D I B E 15

depar t u re) and the entry of judg ment necessarily a ssumes the validity o f the conviction. A down w a r d departure on i n e f f e c t i v e a s s i s t a n c e g r o u n d s i s impermissible because it si multaneously

assumes the validity of a defendant’s conviction and conspicuously calls its validity into doubt.”

Id. at 950 ( q

uoting United State s v

. B i c aksiz
, 194 F .3d 390, 398 (2d Cir. 1999)).

A more appropriate remedy f or the ineffective assistance of counsel would be to a l low Dibe to withdraw his g uilty plea, or to require the g overnment to re-ex tend its proposed plea ag reement. See Johnson v

. U ribe
, 700 F .3d 4 13, 426 (9th Ci r

. 2012) (holding that ineffective assistance rendered during “ the entire plea neg o tiation stag e” would ent i t l e the defendant to a remedy r eturning him to the “pre-plea stag e”), amending and superseding 6 82 F .3d 1238 (9th Cir

. 2 0 1 2 ). Dibe, h owever, seeks neither r emedy on appeal, a nd asks us instead to remand for resentencing

. B ecause we conclude that the district c ourt did not err, we decline to do so. Dibe

can raise any ineffective-assistance-of-counsel claim, which is “g enerally 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 -G uidelines sen t ence is substantively reasonable

F inally
, Dibe challeng es the substantive reasonablen ess of his 1 2 0-month sentence. B ut his arg ument rests o n the

same alleg ed procedural error discussed above—the districtU N I T E D S T A T E S V

. D I B E 16

c o urt’s failure to c onsider his ineffective-assistance-of

counsel claim at sentencing

. B e cause we have concluded that his arg ument is foreclosed by this court’s own precedent, we

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

s e n tence in this case. We a lso “g ive due deference t o t h e district court’s decision that the § 3553(a) factors, on a whole, justify the ex tent of the variance,” and will n o t r e v e r se just because w e b elieve a different sentence is a p p ropriate. United States v. Carty
, 520 F. 3 d 984, 993 (9th Cir. 2 008) (quoting Gall v. U

nited States
, 552 U.S. 38, 51, 59–60 (2007) (internal quotation marks omitted)).

III. CONCLUSION

F or all o f the rea s o n s set forth above, we AF F IRM the judg ment of the district court.