                                                                           FILED
                             NOT FOR PUBLICATION
                                                                           NOV 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              )      No. 15-56259
                                       )
      Plaintiff-Appellee,              )      D.C. No. 2:15-cv-02173-TJH
                                       )
      v.                               )      MEMORANDUM*
                                       )
ALAN GREGORY FLESHER,                  )
AKA Greg Myers,                        )
                                       )
      Defendant-Appellant,             )
                                       )

                   Appeal from the United States District Court
                       for the Central District of California
                  Terry J. Hatter, Senior District Judge, Presiding

                            Submitted November 7, 2016**
                                Pasadena, California

      Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit
Judges.

      Alan Gregory Flesher appeals the district court’s denial of his motion to

vacate his sentence. See 28 U.S.C. § 2255(a). We affirm.

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      Flesher was convicted and sentenced for mail fraud1 following his guilty

plea. After we affirmed his conviction,2 he filed his motion to vacate based upon

his claim that counsel who represented him at the time of his plea and sentencing

was ineffective.3 The district court denied his motion, and this appeal followed.

      Flesher contends that the district court erred because he only intended to

admit the falsity of any mailing that actually contained false revenue statements,

and mailings described in counts of the indictment did not include those

statements. Moreover, he argues that all of the mailings were sent after the scheme

had come to fruition. He asserts that the district court erred because counsel was

deficient when he advised Flesher to plead guilty in those circumstances, and that

he was prejudiced by that deficiency. We disagree.

      We proceed with some care and deference when assessing counsel’s

performance,4 and that is particularly true when a defendant seeks to set aside a



      1
          See 18 U.S.C. § 1341.
      2
          United States v. Flesher (Flesher I), 588 F. App’x 652, 652 (9th Cir. 2014).
      3
       See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984); see also Hill v. Lockhart, 474 U.S. 52, 57–60, 106 S. Ct.
366, 369–71, 88 L. Ed. 2d 203 (1985); Babbitt v. Calderon, 151 F.3d 1170, 1173
(9th Cir. 1998).
      4
          See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065–66.

                                            2
guilty plea after sentencing.5 Here the record demonstrates that Flesher was well

aware of the fact that the counts did not necessarily contain revenue statements as

such—that was shown on the face of the indictment, in specific disclosures at the

plea hearing, and in the presentence report. See Flesher I, 588 F. App’x at 653.

Moreover, it was most likely that the mailings in question were part of the scheme

that Flesher was admittedly part of,6 and it was reasonable to choose to avoid the

vicissitudes of a jury trial on that issue along with the others, in favor of a tactic of

admitting guilt and seeking mitigation at sentencing.7 In short, Flesher did not

show that counsel was deficient, and if there was some deficiency, Flesher did not

show that he suffered prejudice therefrom. See Lafler v. Cooper, __U.S.__,__, 132

S. Ct. 1376, 1384, 182 L. Ed. 2d 398 (2012); Hill, 474 U.S. at 58–60, 106 S. Ct. at

370–71.




      5
        See Premo v. Moore, 562 U.S. 115, 125, 131 S. Ct. 733, 741–42, 178 L. Ed.
2d 649 (2011); Hill, 474 U.S. at 58–59, 106 S. Ct. at 370–71; see also
Blackledge v. Allison, 431 U.S. 63, 71–72, 97 S. Ct. 1621, 1628, 52 L. Ed. 2d 136
(1977); cf. United States v. King, 257 F.3d 1013, 1024 (9th Cir. 2001); United
States v. Nagra, 147 F.3d 875, 880 (9th Cir. 1998).
      6
        See United States v. Tanke, 743 F.3d 1296, 1301–03 (9th Cir. 2014); United
States v. Korab, 893 F.2d 212, 214 n.3 (9th Cir. 1989).
      7
       See Babbitt, 151 F.3d at 1173–74; see also Cullen v. Pinholster, 563 U.S.
170, 195–96, 131 S. Ct. 1388, 1406–07, 179 L. Ed. 2d 557 (2011).

                                            3
      Finally, the district court did not abuse its discretion8 when it denied an

evidentiary hearing on Flesher’s allegations, which, on this record, warranted

summary dismissal.9

      AFFIRMED.




      8
          See United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003).
      9
       See Lambert v. Blodgett, 393 F.3d 943, 980 (9th Cir. 2004); Baumann v.
United States, 692 F.2d 565, 571 (9th Cir. 1982); United States v. Hearst, 638 F.2d
1190, 1194 (9th Cir. 1980); cf. Blackledge, 431 U.S. at 75–76, 97 S. Ct. at 1630.

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