UNITED STATES of America, Appellee, v. George DeJESUS, Defendant-Appellant, 509 F. App'x 12

SUMMARY ORDER Defendant George DeJesus, who is serving consecutive 300- and 60-month prison terms for conspiracy to distribute heroin, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and carrying and brandishing a firearm in connection with drug trafficking, see 18 U.S.C. § 924(e)(l)(A)(ii), appeals this sentence, arguing that his attorney was constitutionally ineffective on remand in failing to move for resentencing without delay in light of our decision in United States v. Williams, 558 F.3d 166, 167-68 (2d Cir.2009).

Although a petition pursuant to 28 U.S.C. § 2255 is generally the preferred vehicle for asserting an ineffectiveness claim, see Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), where, as here, the record permits us to resolve the claim without doubt, we may do so on direct appeal, see United States v. Khedr, 343 F.3d 96, 100 (2d Cir.2003); accord United States v. Hasan, 586 F.3d 161, 170 (2d Cir.2009). In reviewing Dejesus’s Sixth Amendment claim de novo, see Morales v.

United States, 635 F.3d 39, 43 (2d Cir.2011), we assume the parties’ familiarity with the facts and records of prior proceedings, which we reference only as necessary to explain our decision to affirm. A defendant claiming ineffective assistance of counsel must show that (1) his lawyer’s performance fell below an objective standard of reasonableness, and (2) defendant thereby suffered actual prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Morales v. United States, 635 F.3d at 43.

To satisfy the first requirement, DeJesus points to his lawyer’s failure to seek resentencing in the nine-month interval between the April 7, 2009 issuance of this court’s mandate remanding his case and the Supreme Court’s January 25, 2010 grant of certiorari in Abbott v. United States, — U.S. -, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), a case that ultimately abrogated our decision in Williams, see id. at 23-24.

We need not decide whether this omission was objectively unreasonable because DeJesus cannot show a reasonable probability that, but for counsel’s conduct, the result on resen-tencing would have been different, as required to demonstrate prejudice. See Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052; United States v. Brown, 623 F.3d 104, 112 (2d Cir.2010).

First, DeJesus cannot show that he would, in fact, have been sentenced before the grant of certiorari in Abbott, given (1) the pendency of a petition for rehearing en banc of Williams in this court as of June 22, 2009, and (2) the United States Attorney’s routine requests to delay resentenc-ing pursuant to Williams remands pending further review in this court and the Supreme Court. Second, and in any event, DeJesus cannot show that, if resentenced earlier, he would have received a shorter term of incarceration.

This court’s remand order did not require the district court to reduce Dejesus’s total prison sentence; it merely remanded “to give the district court the opportunity to resentence DeJesus in light of our holding in Williams.” United States v. DeJesus, 314 Fed.Appx. 386, 389 (2d Cir.2009) (emphasis added). Thus, while DeJesus could certainly have argued for concurrent sentences, Williams neither required the district court to grant that request, nor precluded it from using concurrent sentences to achieve the same total incarceratory term it had originally imposed through consecutive sentences.

Third, and most important, DeJesus cannot show that if he had received a reduced sentence on remand, that sentence could have survived government appeal in light of the grant of certiorari and ultimate decision in Abbott. In sum, because DeJesus cannot demonstrate prejudice, his ineffective assistance of counsel claim fails. We have considered Dejesus’s remaining arguments and find them to be without merit. Accordingly, the district court’s judgment is AFFIRMED.