FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50210

Plaintiff-Appellee, D.C. No.

v.  CR-05-00010-DOC01 CURTIS JEFFERY BENFORD,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

June 1, 2009—Pasadena, California

Filed August 3, 2009

Before: Pamela Ann Rymer, Susan P. Graber, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Graber

10103
COUNSEL

Tarik S. Adlai, Law Offices of Tarik S. Adlai, Pasadena, California, for the defendant-appellant.

Anne C. Gannon, Assistant United States Attorney, Santa

Ana, California, for the plaintiff-appellee.

OPINION

GRABER, Circuit Judge:

Defendant Curtis Jeffery Benford appeals his conviction

and resulting 147-month sentence for armed robbery. We

hold: (1) the absence of defense counsel from a short pretrial

conference at which the pre-existing trial date was confirmed

and at which nothing else of substance happened did not constitute per se ineffective assistance of counsel in violation of

the Sixth Amendment; and (2) the sentencing court’s incorporation of a “brandished” finding in the presentence report and

UNITED STATES v. BENFORD 10105
the court’s statement at sentencing that the defendant had

“turned and pointed the handgun at [the teller],” which was

“an absolutely harrowing experience for the victims,” sufficed

to support application of the seven-year minimum sentence

provided for in 18 U.S.C. § 924(c)(1)(A)(ii). We therefore

affirm.

FACTUAL AND PROCEDURAL HISTORY

On December 29, 2004, a man robbed a Bank of America

branch in East Brea, California. The robber left with substantial amounts of cash—and, unbeknownst to him, with an electronic tracking device. Police detected the tracking device’s

signal and attempted to stop the motor vehicle carrying the

device. The vehicle did not stop, and a high-speed chase

ensued. Eventually, police managed to stop the vehicle, and

they then apprehended the driver and the passenger, who both

had fled on foot. A bank teller identified the passenger,

Defendant here, as the robber.

The government jointly indicted Defendant on one count of

armed robbery, in violation of 18 U.S.C. § 2113(a), (d)

(“count one”), and one count of using or carrying a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c)

(“count two”), and Michael Jerome King, the driver of the

vehicle, of aiding and abetting the armed robbery. At a postindictment arraignment hearing, the district court scheduled a

pretrial status conference for February 28, 2005, and set the

trial for March 8, 2005.

On February 28, 2005, the district court conducted the

scheduled pretrial status conference. Defendant’s counsel was

“on his way” but did not arrive in time for the conference. All

other interested parties—the government’s lawyer, King’s

lawyer, and both defendants—attended. None of the participants had any issues to resolve. The government’s lawyer and

King’s lawyer stated that the previously scheduled trial date

of March 8 remained acceptable. The government’s lawyer

10106 UNITED STATES v. BENFORD
did say, however, that he had heard that Defendant’s lawyer

had discussed with an Assistant United States Attorney the

possibility of seeking a different trial date but that he personally didn’t “know anything beyond that.” In the absence of

any further information, the court noted that “the matter will

proceed to trial on the date of March 8th when it’s presently

set.” At no time—either before the status conference or after

—did Defendant’s lawyer request a continuance of the trial

date. The trial began, as scheduled, on March 8.

The jury found Defendant guilty of both counts. The court

sentenced Defendant to 147 months’ imprisonment: 63

months on count one and 84 months on count two, to be

served consecutively. Defendant timely appeals his conviction

and sentence.

STANDARDS OF REVIEW

We review de novo whether a defendant received ineffective assistance of trial counsel. United States v. Benlian, 63

F.3d 824, 826 & n.3 (9th Cir. 1995). As discussed below,

however, we ordinarily do not review ineffective assistance of

counsel claims on direct appeal.

We review for plain error claims of procedural error at sentencing raised for the first time on appeal. United States v.

Autery, 555 F.3d 864, 873 (9th Cir. 2009).

DISCUSSION

A. Ineffective Assistance of Counsel

Defendant argues that we must reverse his conviction

because he received ineffective assistance of counsel.1 In par1Defendant also challenges his conviction on the ground that the jury

instructions were erroneous. Because Defendant failed to object at trial,

we review for plain error. United States v. Tirouda, 394 F.3d 683, 688 (9th

Cir. 2005). The jury instructions followed the Ninth Circuit Model Jury

Instructions and required the jury to find all the statutory elements of the

crime. There was, therefore, no error, plain or otherwise. 

UNITED STATES v. BENFORD 10107
ticular, Defendant claims that his counsel was unfamiliar with

the physical evidence, failed to request a continuance, failed

to interview key percipient witnesses, failed to subpoena adequately another witness, failed to research the jury instructions adequately, failed to object to the jury instructions,

failed to conduct sufficient discovery, and failed to consult

with Defendant adequately.

“As a general rule,” we do not review ineffective assistance

of counsel claims on direct appeal. United States v. Jeronimo,

398 F.3d 1149, 1155 (9th Cir. 2005).

The rationale for our general rule . . . is that ineffectiveness of counsel claims usually cannot be

advanced without the development of facts outside

the original record. Stated another way, a challenge

to effectiveness of counsel by way of a habeas corpus proceeding is preferable as it permits the defendant to develop a record as to what counsel did, why

it was done, and what, if any, prejudice resulted. 

We have recognized two extraordinary exceptions

to this general rule: We have permitted ineffective

assistance claims to be reviewed on direct appeal in

the unusual cases (1) where the record on appeal is

sufficiently developed to permit determination of the

issue, or (2) where the legal representation is so

inadequate that it obviously denies a defendant his

Sixth Amendment right to counsel.

Id. at 1156 (alterations, internal quotation marks, and citations

omitted).

Most of Defendant’s arguments fall plainly within the

“general rule” and do not constitute an “extraordinary exception” or present an “unusual case.” The factual record on

direct appeal is insufficient to assess “what counsel did, why

it was done, and what, if any, prejudice resulted.” Id. We

10108 UNITED STATES v. BENFORD
therefore decline to address all of the ineffective assistance of

counsel claims except one: that the undisputed absence of

Defendant’s lawyer from the pretrial status conference was

per se ineffective assistance of counsel because the conference was a “critical stage” of the trial. Defendant asserts that

we may review this claim on direct appeal because no factual

record need be developed; that is, this claim falls within the

exception in which “the record on appeal is sufficiently developed to permit determination of the issue.” Id. For the reasons

below, we agree with Defendant that we may review this

claim on direct appeal, but we disagree that the pretrial status

conference here was a “critical stage.”

Two important observations lead us to conclude that we

may review this claim on direct appeal. First, the record on

appeal is clear—and the government does not dispute—that

Defendant’s counsel was absent from the pretrial status conference. No further factual development is needed to establish

that point. Second, although most ineffective assistance of

counsel claims require courts to conduct a prejudice inquiry,

see generally Strickland v. Washington, 466 U.S. 668 (1984),

a complete denial of counsel at a critical stage does not. See

Musladin v. Lamarque, 555 F.3d 830, 836 (9th Cir. 2009)

(“[C]ourts are ‘require[d] . . . to conclude that a trial is unfair

if the accused is denied counsel at a critical stage of his

trial.’ ” (second alteration in original) (quoting United States

v. Cronic, 466 U.S. 648, 659 (1984)). Because prejudice is

presumed, no factual development is needed on this point

either. We turn, then, to the question whether the pretrial status conference in this case was a “critical stage.”

“The Supreme Court has not provided a definitive list of

Cronic ‘critical stages.’ ” Id. at 839. But the Court’s cases

provide several examples of critical stages. See Montejo v.

Louisiana, 129 S. Ct. 2079, 2085 (2009) (post-indictment

interrogation); Iowa v. Tovar, 541 U.S. 77, 81 (2004) (entry

of a guilty plea); Gardner v. Florida, 430 U.S. 349, 358

(1977) (sentencing); United States v. Wade, 388 U.S. 218,

UNITED STATES v. BENFORD 10109
236-37 (1967) (post-indictment lineup); see also Frantz v.

Hazey, 533 F.3d 724, 743 (9th Cir. 2008) (en banc) (consideration of a jury note). Examples of stages that are not critical

include the taking of a handwriting exemplar, Gilbert v. California, 388 U.S. 263, 267 (1967), and a post-indictment photographic lineup, United States v. Ash, 413 U.S. 300 (1973).

See also Hovey v. Ayers, 458 F.3d 892, 902 (9th Cir. 2006)

(mid-trial hearing on the competency of defendant’s lawyer).

[1] “A critical stage is any ‘stage of a criminal proceeding

where substantial rights of a criminal accused may be affected.’ ” Hovey, 458 F.3d at 901 (quoting Mempa v. Rhay, 389

U.S. 128, 134 (1967)).

[W]e have distilled a three-factor test for determining what constitutes a critical stage. We consider

whether: (1) failure to pursue strategies or remedies

results in a loss of significant rights, (2) skilled counsel would be useful in helping the accused understand the legal confrontation, and (3) the proceeding

tests the merits of the accused’s case. The presence

of any one of these factors may be sufficient to render a stage of the proceedings “critical.” 

Id. (internal quotation marks and citation omitted).2

[2] The pretrial status conference in this case implicates

2

In Musladin, we did not mention the Hovey three-part test but considered, instead, whether the stage more generally had “ ‘significant consequences for the accused.’ ” 555 F.3d at 839 (quoting Bell v. Cone, 535

U.S. 685, 696 (2002)). We do not read Musladin as a departure from

Hovey but simply as a more general formulation of the test. Nothing in

Musladin suggests that it intended to displace the Hovey three-part inquiry

and, of course, Musladin could not overrule Hovey because there has been

no inconsistent intervening Supreme Court precedent. See generally Miller

v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). But we note

that we would reach the same conclusion under Musladin’s more general

“significant consequences” test, for the same reasons as stated in text. 

10110 UNITED STATES v. BENFORD
none of those “factors.” Nothing significant occurred at the

pretrial status conference. It is true that, had he attended,

Defendant’s lawyer could have asked for a continuance during the conference. But, just as easily, he could have moved

for a continuance before the conference or after it. Nothing in

the record suggests that the district court would not have

entertained such a motion, had one been filed, nor that his

chances for a continuance were better at the status conference

than they were either before or after the conference.

[3] Because nothing other than confirming the pre-existing

trial date occurred at the conference, there was no “loss of significant rights.” Hovey, 458 F.3d at 901. There also was no

“legal confrontation,” so counsel would not have been “useful

in helping the accused understand” the proceeding. Id. (internal quotation marks omitted). Finally, the hearing plainly did

not “test[ ] the merits of the accused’s case.” Id.

[4] Unlike the stages found to be critical by the Supreme

Court and by us, this particular status conference had nothing

to do with the merits of Defendant’s case and did not result

in the resolution of any issue that could not easily have been

altered in the future. We therefore hold that there was no violation of Defendant’s Sixth Amendment right to counsel on

the narrow question of the claimed complete denial of counsel

at a critical stage.3 We limit our holding to what happened

(and what did not happen) in this case; we do not hold that a

status conference never can be a critical stage, but only that

this one was not. Additionally, because we address here only

3To the extent that Defendant argues more generally that his counsel

should have filed a motion to continue the trial date, that claim is appropriate only for collateral review. See Jeronimo, 398 F.3d at 1155. Counsel

may have had a strategic reason for not moving for a continuance; for

instance, Defendant might have declined to waive his right to a speedy

trial, counsel might have thought that the government’s case would be less

well presented if the trial took place quickly, or the like. In addition to

exploring why counsel did not ask for a continuance, a habeas corpus proceeding would examine whether any prejudice resulted. See id. at 1156.

UNITED STATES v. BENFORD 10111
Defendant’s claim that the absence of his counsel at the status

conference constitutes per se ineffective assistance of counsel,

he may bring all other claims in a habeas proceeding, the

validity of which we do not consider here.

B. Sentencing

[5] Defendant argues that the district court’s imposition of

seven years’ imprisonment for count two, the violation of 18

U.S.C. § 924(c), is in error. Section 924(c)(1)(A) states:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by

any other provision of law, any person who, during

and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug

trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may

be prosecuted in a court of the United States, uses or

carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or

drug trafficking crime—

(i) be sentenced to a term of imprisonment of not

less than 5 years; 

(ii) if the firearm is brandished, be sentenced to a

term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to

a term of imprisonment of not less than 10 years.

Defendant argues that, because neither the jury nor the judge

made a finding that he “brandished” the firearm, the district

court was required to impose a five-year sentence under sub10112 UNITED STATES v. BENFORD
section (i), rather than the seven-year sentence under subsection (ii) that the district court actually imposed.

[6] Defendant is mistaken to the extent that he argues that

the jury had to make the finding that he brandished a firearm.

Under settled law, the judge was authorized to make the

“brandished” finding as a sentencing enhancement. See Harris v. United States, 536 U.S. 545, 551-52 (2002) (holding

that, under § 924(c), “brandishing” a firearm is a sentencing

factor, not an element of the crime, and that allowing a judge

to make that finding did not violate the defendant’s constitutional rights).

[7] The more difficult question here concerns whether the

district court actually made the necessary “brandished” finding. “[T]he term ‘brandish’ means, with respect to a firearm,

to display all or part of the firearm, or otherwise make the

presence of the firearm known to another person, in order to

intimidate that person, regardless of whether the firearm is

directly visible to that person.” 18 U.S.C. § 924(c)(4). The

presentence report (“PSR”) recommended that the district

court apply subsection (ii) of the statute, because Defendant

brandished a firearm, and that the district court impose the

minimum sentence (which is also the guideline sentence) of

seven years. The district court did just that and expressly “adopt[ed]” the relevant sections of the PSR “as the Court’s own

findings.” Additionally, the court found that Defendant

“turned and pointed the handgun at [the teller] . . . . This has

to be an absolutely harrowing experience for the victims

involved.” See also Jury Instructions (requiring the jury to

find that Defendant “intentionally made a display that reasonably caused the bank teller . . . to fear bodily harm by using

a dangerous weapon”). Those findings plainly encompass a

finding that Defendant brandished a firearm. Importantly,

Defendant did not object to the PSR or to the district court’s

sentence. In conclusion, the district court adequately made the

necessary “brandished” finding.

UNITED STATES v. BENFORD 10113
We are mindful of our recent opinion in United States v.

Carter, 560 F.3d 1107, 1114 (9th Cir. 2009). There, we

reviewed a factual finding by the sentencing court that was

“ambiguous” because, on appeal, it was unclear whether the

district court found that Defendant “brandished” a firearm or

simply “used” a firearm (which would warrant only a fiveyear sentence under subsection (i)). Id. In light of the ambiguity, we held:

Because it is unclear whether the district court found

the firearm was brandished, we must vacate the

seven-year sentence and remand for re-sentencing on

the charge of violation of 18 U.S.C. § 924(c). The

trial judge, rather than this court, is in a better position to make the determination whether the firearm

was “used” or “brandished.” The trial judge must

make this determination and state it clearly on the

record.

Id. Here, however, the district court’s finding is unambiguous.

The district court adequately found that Defendant brandished

the firearm.4

AFFIRMED.

4Even if the district court erred by failing to state expressly on the

record in so many words that Defendant “brandished” a firearm, we would

not reverse the sentence, because the plain-error standard would not be

met. The alleged error was not “plain” and did not affect Defendant’s substantial rights. The jury findings, the PSR’s findings, and the district

court’s findings clearly encompassed an express finding that Defendant

“brandished” a firearm. 

10114 UNITED STATES v. BENFORD