Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); Ninth Circuit Rule 34-4.
Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding.
Before GOODWIN, BEEZER and T. NELSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Jung Hwan Seo appeals his 96-month sentence, arguing that the sentence imposed resulted from ineffective assistance of counsel. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.
As the parties are familiar with the case, we need not review the facts at length here. In brief, Seo was arrested after an undercover agent conducted a controlled buy of crystal methamphetamine ("ice") in a hotel room. Seo pleaded guilty to conspiracy to distribute methamphetamine and the criminal forfeiture of $20,000.
At the sentencing hearing, the court declined to grant Seo a statutory reduction under the safety valve provision of 18 U.S.C. § 3553(f) or a reduction for minor or minimal participation in the offense under § 3B1.2 of the Sentencing Guidelines. The court granted the government's motion for downward departure based on substantial assistance and sentenced Seo to a term of imprisonment of 96 months.
I
The safety valve provision of the Mandatory Minimum Sentencing Reform Act, 18 U.S.C. § 3553(f), authorizes sentencing courts to disregard statutory minimums in sentencing first-time nonviolent drug offenders who played a minor role in the offense and who have made a good-faith effort to cooperate with the government. See United States v. Shrestha, 86 F.3d 935, 940 (9th Cir.1996) (citing United States v. Arrington, 73 F.3d 144, 147 (7th Cir.1996)). We review the determination whether a defendant is eligible for relief under the safety valve provision for clear error. See United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996).
The court's determination that Seo failed to provide to the government all information he had concerning the offense was not clearly erroneous. After his arrest, Seo informed the agents that he believed co-defendant Young Nam Bae to associate with many local drug dealers. Seo further indicated that Bae represented that he could sell one kilogram of ice within a few days and that he and Bae had discussed a deal before their arrival at the hotel. According to the transcript of the conversations in the hotel room, Seo planned to purchase one kilogram of ice and use the proceeds from the sale to purchase two more kilograms. Seo did not provide the government the names of any associates or any description as to how the ice would be distributed. In addition, Seo's inconsistent accounts of his involvement in the transaction support the conclusion that he did not make a good faith effort to provide truthful information to the government. The court's determination that Seo was not entitled to the safety valve provision was not clearly erroneous.
II
Section 3B1.2 of the Sentencing Guidelines authorizes an offense level reduction for "minimal" or "minor" participation in the offense. We review the decision whether a defendant is a minor or minimal participant for clear error. United States v. Andrus, 925 F.2d 335, 337 (9th Cir.1991).
The court correctly found that Seo was a key player, rather than a minor or minimal participant, in the offense. Although Seo contends that he went to the hotel to visit his friend Cha Hyun Yun, not to buy drugs, the evidence demonstrates that Seo played more than a minimal or minor role in the offense. Yun, along with Soo Hyung Kong, negotiated several transactions with the undercover agent before Seo and Bae arrived at the hotel room. During these negotiations, Yun and Kong called Seo for assistance and described Seo's ability to generate cash to purchase more ice. Once Seo arrived in the room, he criticized the undercover agent for taking too long to complete the deal. The court's denial of a reduction for minor or minimal participant status was not clearly erroneous.
III
We do not reach the merits of Seo's claim of ineffective assistance of counsel. The customary procedure in the Ninth Circuit for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255, rather than on direct appeal. United States v. Hanoum, 33 F.3d 1128, 1131 (9th Cir.1994). Although there are exceptions to this general rule, they are not applicable in this case. See id.; United States v. Andrews, 75 F.3d 552, 557 (9th Cir.),cert. denied, 517 U.S. 1239, 116 S.Ct. 1890, 135 L.Ed.2d 183 (1996). Seo concedes that there is no record on which to review to his allegations of ineffective assistance. In the absence of a record for review on direct appeal, we do not reach the merits of Seo's claim of ineffective assistance of counsel.
AFFIRMED.