UNITED STATES of America, Plaintiff-Appellee, v. Jason Michael STONE, Defendant-Appellant, 224 F. App'x 720

MEMORANDUM Jason Michael Stone appeals from the district court’s order denying his 28 U.S.C. § 2255 motion challenging the sentence imposed following his guilty-plea conviction for distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. Stone contends that he received ineffective assistance of counsel because counsel failed to seek a downward departure for over-representation of criminal history.

A review of the record reflects that counsel’s tactical decision to seek a departure based only on what he believed was the stronger ground of diminished mental capacity was not objectively unreasonable. See Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir.1990). Accordingly, counsel’s performance was not deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.