Opinion
No. 09-30384.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 29, 2010.
Carl E. Rostad, Assistant U.S., Office of the U.S. Attorney, Great Falls, MT, for Plaintiff-Appellee.
Lucas J. Foust, Esquire, Foust Law Office, P.C., Bozeman, MT, for Defendant-Appellant.
Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:09-cr-00023-DWM.
Before: O'SCANNLAIN, TALLMAN, and BE A, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
David Paul Peters appeals from his 262-month sentence imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Peters contends that his counsel was ineffective by failing to challenge the district court's finding that the conspiracy started in 2005, giving rise to a career offender designation that led to a higher advisory guidelines range. Although we generally do not address claims of ineffective assistance of counsel on direct review, we can consider the merits where the record on appeal is sufficiently developed to permit determination of the issue. See United States v. Alferahin, 433 F.3d 1148, 1160-61 n. 6 (9th Cir. 2006). The record reflects that Peters's counsel was not deficient, nor was Peters prejudiced by any possibly deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).