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50 F3d 18 United States v. Thomas IV

50 F.3d 18

UNITED STATES of America, Plaintiff-Appellee,
v.
Andrew Hart THOMAS, IV, Defendant-Appellant.

No. 94-35430.

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 1995.*
Decided March 9, 1995.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: PREGERSON, KOZINSKI and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Even assuming defendant received deficient advice from trial counsel regarding acceptance of responsibility, defendant has failed to show he suffered any prejudice from that advice. Under Strickland v. Washington, 466 U.S. 668, 694 (1984), defendant had to demonstrate a "reasonable probability" that the outcome of his sentencing hearing would have been different had he received effective representation. We agree with the district court that defendant failed to meet this burden. Defendant testified that, had he received effective assistance of counsel, he would have pleaded guilty and demonstrated genuine acceptance of responsibility for his crime. The district court found that this testimony simply wasn't credible. We find nothing in the record to suggest that this credibility determination should be disturbed. The district court properly denied defendant's motion to vacate his sentence.

3

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3