U.S. Court of Appeals for the Ninth Circuit, 2007

United States v. Lazaro-Alonzo

U.S. Court of Appeals for the Ninth Circuit · Decided May 8, 2007 · Canby, Nelson, Silverman

232 F. App'x 664

Opinion of the Court

MEMORANDUM *

Benjamin Lazaro-Alonzo appeals the district court’s denial of his motion to reconsider a previous order declining to re-sentence him after a remand under United States v. Ameline.1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

The district court properly solicited the views of counsel before deciding whether to resentence Lazaro-Alonso.2 Although Lazaro-Alonso’s counsel did not respond, the district court had enough information to conclude that Lazaro-Alonzo’s 70-month sentence would have been the same had the district court known that the Guidelines were advisory at the time of sentencing.3 Thus, the district court was *666well within its discretion to deny LazaroAlonso’s motion to reconsider.4

We decline to reach the merits of Lazaro-Alonzo’s ineffective assistance of counsel claim.5 The record is not adequately developed as to the explanations for defense counsel’s actions and what, if any, prejudice resulted.6 Thus, Lazaro-Alonzo’s claim is more appropriate for collateral attack under 28 U.S.C. § 2255.7

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

. United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005).

. See United States v. Montgomery, 462 F.3d 1067, 1069 (9th Cir. 2006) (holding that a district court must "obtain, or at least solicit, the views of counsel in writing before deciding whether re-sentencing is appropriate”).

. See Ameline, 409 F.3d at 1084-85 (describing in detail the procedure under which a case is remanded to the district court to determine whether the sentence imposed would *666have been materially different had the district court known that the Sentencing Guidelines were mandatory at the time of sentencing).

. See United States v. Hobbs, 31 F.3d 918, 923 (9th Cir. 1994) (stating that this court reviews for abuse of discretion the district court's denial of a motion to reconsider).

. See United States v. Laughlin, 933 F.2d 786, 788 (9th Cir. 1991) ("As a general rule, we will not review challenges to the effectiveness of defense counsel on direct appeal.”).

. See id. at 788-89 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) (declining to consider an ineffective assistance of counsel claim on direct appeal when the "[fjormer defense counsel had no opportunity to explain his actions” and the record was not developed as to prejudice).

. Id. at 788.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.