UNITED STATES v. SAMAL (2020)

MEMORANDUM **

Pradyumna Kumar Samal appeals from the district court’s judgment and challenges the 87–month sentence imposed following his guilty-plea conviction for mail fraud, in violation of 18 U.S.C. § 1341, and failure to pay or collect taxes, in violation of 26 U.S.C. § 7202. We have jurisdiction under 28 U.S.C. § 1291, and we dismiss.

Samal contends that he was denied effective assistance of counsel at sentencing when counsel failed to object to probation’s criminal history calculation. We agree with the government that Samal’s claim is barred by the appeal waiver in the parties’ plea agreement in which Samal gave up his right to pursue a direct appeal of his sentence. See United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (“[O]ne waives the right to argue ineffective assistance of counsel at sentencing on direct appeal when one waives the right to appeal the sentence.”). As the language of the appeal waiver contemplates, any claim of ineffective assistance of counsel may be raised in a 28 U.S.C. § 2255 motion. See United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003).

DISMISSED.