United States v. Leonel Gualdron-Lamus , 697 F. App'x 324 ( 2017 )

Case: 17-40057 Document: 00514142624 Page: 1 Date Filed: 09/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40057
Fifth Circuit
FILED
Summary Calendar September 5, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
LEONEL GUALDRON-LAMUS, also known as El Electrico,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-CR-189-2
Before DAVIS, PRADO, and COSTA, Circuit Judges.
PER CURIAM: *
Leonel Gualdron-Lamus appeals the sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to manufacture and
distribute cocaine. He argues that the district court plainly erred in not
applying a two-level “safety valve” reduction to his offense level pursuant to
U.S.S.G. § 2D1.1(b)(17). To the extent his appeal waiver precludes this claim,
he also “invokes” the waiver’s reserved exception for claims of ineffective
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-40057 Document: 00514142624 Page: 2 Date Filed: 09/05/2017
No. 17-40057
assistance of counsel due to counsel’s failure to object to the lack of a §
2D1.1(b)(17) reduction. The Government moves for summary dismissal of the
appeal based upon the appeal waiver or, alternatively, for an extension of time
to file a brief.
We review the validity of an appeal waiver de novo. See United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The written plea agreement and
the rearraignment transcript reflect that Gualdron-Lamus knowingly and
voluntarily agreed to the appeal waiver, making the appeal waiver enforceable.
See United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Gualdron-
Lamus’s challenge to his sentence does not fall within the exceptions to the
appeal waiver for a claim that his sentence exceeded the statutory maximum
and for claims of ineffective assistance of counsel. Accordingly, his appeal is
barred by the waiver. See United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005).
To the extent that Gualdron-Lamus is raising a claim of ineffective
assistance of counsel on direct appeal, the record is not sufficiently developed
to permit direct review of this claim. See United States v. Isgar, 739 F.3d 829,
841 (5th Cir. 2014). Because that is usually the case, a 28 U.S.C. § 2255 motion
is the preferred method for raising claims of ineffective assistance of counsel.
See Massaro v. United States, 538 U.S. 500, 503-09 (2003). The appeal is
therefore DISMISSED without prejudice to Gualdron-Lamus’s right to pursue
an ineffective assistance of counsel claim in a § 2255 proceeding. We GRANT
the Government’s motion to dismiss the appeal, and we DENY the
Government’s alternative motion for an extension of time to file a brief.
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