UNITED STATES of America, Plaintiff-Appellee, v. John Richard VARNER, Defendant-Appellant, 511 F. App'x 628

MEMORANDUM Defendant-Appellant John Varner was convicted on four counts of conspiracy and tax fraud. Varner appeals his conviction, arguing that the trial court erred in failing to give the jury an accomplice instruction sua sponte and that counsel’s failure to request the instruction constituted ineffective assistance. A district court’s failure to give a jury instruction sua sponte is reviewed for plain error. United States v. Guthrie, 981 F.2d 564, 567 (9th Cir.1991). Because we have held that “where an accomplice instruction is not requested, it is not plain error not to give one sua sponte,” United States v.

Gere, 662 F.2d 1291, 1295 (9th Cir.1981), Varner’s first argument fails. Nor was counsel’s failure to request the instruction ineffective assistance. On the record before us, we conclude that defense counsel’s conduct “falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The judgment is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.