NOT FOR PUBLICATION                           FILED
                                                                          NOV 6 2020
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No.   19-15532

             Plaintiff-Appellee,                 D.C. Nos.
                                                 1:18-cv-00090-SOM
 v.                                              1:13-cr-01036-SOM-1

MALIA ARCIERO,                                   MEMORANDUM*

             Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                   Susan Oki Mollway, District Judge, Presiding

                     Argued and Submitted October 21, 2020
                               Honolulu, Hawaii

Before: WALLACE, BEA, and BENNETT, Circuit Judges.

      Malia Arciero was convicted of four drug-related offenses in violation of 21

U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(C). The district court

sentenced her to 172 months imprisonment and five years supervised release.



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Arciero appealed from the conviction and challenged conditions of her supervised

release, and our court affirmed in a memorandum disposition. United States v.

Arciero, 679 F. App’x 581 (9th Cir. 2017).

      Arciero filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct her

sentence, asserting a claim for ineffective assistance of counsel. The district court

denied the motion and declined to issue a certificate of appealability (COA).

Arciero appealed from the district court’s order, and our court granted a COA. We

have jurisdiction under 28 U.S.C. §§ 1291 and 2253. “We review de novo the

district court’s determinations of whether a defendant received ineffective

assistance of counsel. . . .” United States v. Alaimalo, 

313 F.3d 1188

, 1191 (9th

Cir. 2002). “We review for clear error the factual findings underlying the denial of

a § 2255 motion.”

Id. We affirm. To

succeed on an ineffective assistance of counsel claim, a convicted

defendant must show that counsel’s performance was deficient and entailed “errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment,” and “that the deficient performance

prejudiced the defense.” Strickland v. Washington, 

466 U.S. 668

, 687 (1984).

Discussing practical considerations, the Court stated that “a court need not

determine whether counsel’s performance was deficient before examining the


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prejudice suffered by the defendant as a result of the alleged deficiencies.”

Id. at 697.

       Arciero was arrested in April 2013 and retained Michael J. Green in July

2013. The government offered Arciero a plea agreement by which she could have

avoided a potential ten-year mandatory minimum sentence. She refused it and

discharged Green because he encouraged her to plead guilty.

       In November 2013, Arciero retained Gary Dubin and told him that she was

innocent, wanted to go to trial, and had been sexually assaulted by the government

case agent. After Arciero advised Dubin of the sexual assault allegations, Dubin

submitted three pretrial motions in August 2014. Each motion was supported by

Arciero’s declaration describing the sexual assault allegations in detail.

       In November 2014, after her sister pled guilty to related offenses, Arciero

expressed doubt about going to trial and an interest in pleading guilty. Dubin

chastised Arciero for her reluctance, sometimes harshly, and he emphasized that

the government was not currently offering Arciero a plea agreement. Nonetheless,

Dubin contacted the government to discuss a possible plea. The government

offered a proposed agreement that required Arciero to recant her sexual assault

allegations. Arciero stated that she would accept the agreement only if the

government proposed a sentence of less than three years imprisonment. The


                                          3
government responded that such an agreement was not possible because of

Arciero’s sexual assault allegations, which it characterized as false.

      Arciero’s trial began in December 2014, and in January 2015, the jury

convicted Arciero on all counts. On September 18, 2015, three days before her

sentencing hearing, Arciero retracted her accusations against the case agent and

stated that the allegations were false. At sentencing, the district court imposed a

two-level obstruction of justice enhancement based on, among other things,

Arciero’s false accusations against the case agent. Arciero’s advisory sentencing

guideline range was 151 to 188 months. Describing Arciero’s retraction of the

sexual assault allegations as a “very opportunistic, very manipulative” “last-minute

conversion,” the district court reasoned that a “significant sentence” was

appropriate. The court imposed concurrent sentences of 172 months imprisonment

to each count.

      We disagree with Arciero’s ineffective assistance of counsel claim because

she fails to show that she was prejudiced by Dubin’s performance. With respect to

her retracted sexual assault allegations, Arciero argues that Dubin failed to advise

her of the negative consequences of using the allegations, filed ineffective pretrial

motions, and failed to question Arciero about the allegations. However, Arciero’s

argument merely faults Dubin for believing her. The record clearly illustrates that


                                          4
Arciero’s false allegations and her last-minute retraction—not Dubin’s conduct—

guided the district court’s sentence. Even if otherwise, Arciero cannot show

prejudice because the district court imposed the obstruction-of-justice

enhancement based on three separate instances of Arciero’s untruthfulness, not just

her false allegations against the case agent. Moreover, Arciero conceded that she

does not assert a failure-to-investigate claim, and even if she did, she fails to

explain why Dubin should have doubted her sexual assault allegations.

      Similarly, Arciero fails to show that Dubin’s November 2014 emails

regarding the merits of going to trial prejudiced her. After rejecting the first plea

agreement and discharging her prior counsel, Arciero retained Dubin to go to trial.

No plea agreement was available when the two corresponded in mid-November

2014, and Arciero subsequently rejected the plea agreement the government

offered in late November 2014. Arciero was not prejudiced by Dubin’s counsel

because she desired to go to trial and decided to reject the then-available plea

agreements.

      AFFIRMED.




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