United States v. Suarez ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-21141
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ENRIQUE SUAREZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CR-50-1)
_________________________________________________________________
October 26, 1999
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Luis Enrique Suarez contends that his 72-month sentence
(increased on remand from 60 months) for possession of cocaine with
intent to distribute is the product of judicial vindictiveness and
based on attorney-client communications; that his counsel was
ineffective by disclosing to the court that Suarez refused to
identify his coconspirators for fear of retaliation; and that the
*
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this opinion should not be published and is not precedent except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.
Government committed prosecutorial misconduct during his
arraignment.
Because, at sentencing, Suarez did not object regarding
judicial vindictiveness, our review is limited to plain error. See
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc). Although Suarez’s sentence on remand was higher than his
original sentence, thus raising a presumption of vindictiveness,
“objective information in the record justif[ied] the increased
sentence”. United States v. Campbell, 106 F.3d 64, 67 (5th Cir.
1997) (quoting Wasman v. United States, 468 U.S. 559, 565 (1984)).
Nor was Suarez’s sentence based on counsel’s disclosure of
attorney-client communications. In sum, there was no plain error.
Generally, we decline, on direct appeal, to review ineffective
assistance of counsel claims, see, United States v. Gibson, 55 F.3d
173, 179 (5th Cir. 1995); the exception is “in rare cases where the
record allow[s]” a fair evaluation of the merits. United States v.
Higdon, 832 F.2d 312, 314 (5th Cir. 1987). Here, no further facts
need to be developed for the claim to be suitable for review.
Because the district court did not arrive at the sentence by
relying on counsel’s disclosure of attorney-client communications,
Suarez has failed to show that he was prejudiced by the disclosure.
See Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).
Finally, Suarez’s prosecutorial-misconduct claim, also
reviewed for plain error because he did not make a contemporaneous
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objection, see United States v. Binker, 795 F.2d 1218, 1227 (5th
Cir. 1986), fails because it is not supported by the record. See
United States v. Rocha, 916 F.2d 219, 234 (5th Cir. 1990).
AFFIRMED
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