United States v. Boruch Rapoport , 633 F. App'x 264 ( 2016 )

Case: 15-50526 Document: 00513375620 Page: 1 Date Filed: 02/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50526
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 11, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
BORUCH YECHIEL RAPOPORT, also known as Barry, also known as
Boruch Yesiel Rapoport,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-1741-1
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Pursuant to a written plea agreement, Boruch Yechiel Rapoport pleaded
guilty to conspiracy to possess marijuana with intent to distribute, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. In that agreement, Rapoport waived the
right to appeal his sentence, with some exceptions, including if his
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-50526 Document: 00513375620 Page: 2 Date Filed: 02/11/2016
No. 15-50526
constitutional rights were violated by, inter alia, ineffective assistance of
counsel.
Rapoport was sentenced to a within-advisory-Guidelines term of 16
months’ imprisonment. On appeal, Rapoport acknowledges the appeal waiver
but maintains the issues presented fall within the ineffective-assistance
exception. In that regard, he contends his trial counsel provided ineffective
assistance at sentencing by failing to object to: his not receiving a minor-role
adjustment, pursuant to Guideline § 3B1.2; and, the procedural and
substantive unreasonableness of his sentence.
Generally, “claims of ineffective assistance of counsel should not be
litigated on direct appeal, unless they were previously presented to the trial
court”. United States v. Isgar, 739 F.3d 829, 841 (5th Cir.), cert. denied, 135 S.
Ct. 123 (2014). For ineffective-assistance claims not presented in district court,
“[i]t is only in rare cases in which the record allows a reviewing court to fairly
evaluate the merits of the claim that we will consider such a claim”. Id.
(internal quotation marks omitted); see also United States v. Kizzee, 150 F.3d
497, 502–03 (5th Cir. 1998) (record insufficient for review where district court
did not hear testimony or make factual findings as to ineffective-assistance
claims).
Although Rapoport’s ineffective-assistance-of-counsel claims fall within
an exception to his appeal waiver, the record is not sufficiently developed to
afford them fair consideration due to his failure to raise them in district court.
See Isgar, 739 F.3d at 841. Accordingly, we decline to consider his claims on
direct appeal; Rapoport may raise them on collateral review under 28 U.S.C.
§ 2255. See Massaro v. United States, 538 U.S. 500, 508–09 (2003).
AFFIRMED.
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