United States v. Kiep ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50290
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED JOHN KIEP,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-99-CR-154-1-F
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September 7, 2001
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alfred John Kiep appeals his conviction and sentence for
possession of more than 100 kilograms of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1).
Kiep contends that the evidence was insufficient to support
the knowledge element of his conviction, in that the marijuana
was concealed in a hidden compartment of the rented recreational
vehicle (“RV”) Kiep was driving. The evidence was not
insufficient to support Kiep’s conviction. See United States v.
El-Zoubi, 993 F.2d 442, 445 (5th Cir. 1993); United States v.
*
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that this opinion should not be published and is not precedent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.
No. 00-50290
-2-
Cano-Guel, 167 F.3d 900, 904 (5th Cir. 1999). The jury was
authorized to find implausible Kiep’s story of how the marijuana
came to be found in the RV at a Border Patrol checkpoint in
Texas. See United States v. Ramos-Garcia, 184 F.3d 463, 466 (5th
Cir. 1999); United States v. Jones, 185 F.3d 459, 464 (5th Cir.
1999) (constructive possession of drugs may be shown by control
of vehicle in which drugs are concealed), cert. denied, 121 S.
Ct. 125 (2000).
For the first time on appeal, Kiep contends that the
prosecution made improper comments during its closing statement
when it stated that he had “duped” and “used” his wife with
respect to the proposed California trip. The record suggests
that these comments were based on the evidence presented at trial
rather than that they were the prosecutor’s personal opinion of a
witness’s credibility. See United States v. George, 201 F.3d
370, 373-74 (5th Cir.), cert. denied, 529 U.S. 1136 (2000);
United States v. Casel, 995 F.2d 1299, 1309 (5th Cir. 1993),
judgment vacated as to codefendant on other grounds, 510 U.S.
1188 (1994). Kiep has not demonstrated plain error with respect
to this claim. See United States v. Calverley, 37 F.3d 160, 162-
64 (5th Cir. 1994) (en banc).
Also for the first time on appeal, Kiep maintains that his
trial attorney performed ineffectively by misinforming him about
the applicability of the “safety valve” provision, U.S.S.G.
§ 5C1.2. Claims of ineffective assistance of counsel generally
may not be raised on direct appeal unless they were raised in
district court. United States v. Rivas, 157 F.3d 364, 369 (5th
No. 00-50290
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Cir. 1998). When such a claim is raised for the first time on
direct appeal, this court will reach the merits of such claim
only “‘in rare cases where the record [allows the court] to
evaluate fairly the merits of the claim.’” Id. (quoting United
States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987)). This is
not one of the “rare cases” in which the record permits this
court to address the merits of such a claim.
Finally, Kiep argues that the district court erred in not
applying the “safety valve” guideline. Aside from the fact that
Kiep never formally requested a “safety valve” departure in
district court, the record reflects that Kiep failed to sustain
his burden of “‘ensuring that he has provided all the information
and evidence regarding the offense to the Government.” United
States v. Miller, 179 F.3d 961, 964 (5th Cir. 1999) (citation
omitted).
AFFIRMED.