United States v. Oyoque-Gonzalez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20305
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL OYOQUE-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-639
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February 11, 2002
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Court-appointed counsel for Saul Oyoque-Gonzalez, has
requested leave to withdraw as counsel and has filed a brief as
required by Anders v. California, 386 U.S. 738 (1967). Oyoque-
Gonzalez filed a response advancing three issues, and a request
to proceed pro se on appeal. First, he argues that the district
court erred in treating his deferred adjudication as a felony
conviction. This court rejected such an argument in Valdez v.
Valdez, 143 F.3d 196, 197 (5th Cir. 1998). Second, he maintains
his counsel was ineffective for failing to raise an alleged
*
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that this opinion should not be published and is not precedent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. 01-20305
-2-
Apprendi v. New Jersey, 530 U.S. 466 (2000), argument.
Generally, this court declines to review ineffective assistance
of counsel claims on direct appeal unless they are sufficiently
alleged in the record below. United States v. Gibson, 55 F.3d
173, 179 (5th Cir. 1995). In Gonzalez’s case, no claims of
ineffective assistance exist in the record. In any event, this
argument fails, because the district court sentenced Gonzalez
well within the guideline range. Finally, Gonzalez relies on
United States v. Rodriguez-Montelongo, 263 F.3d 429, 431 (5th
Cir. 2001), decided after his trial, for the proposition that he
should be allowed to argue for downward departure on the basis of
cultural assimilation. Because he raised this issue for the
first time on appeal, we review this argument under a plain error
standard. United States v. Rios-Quinteros, 204 F.3d 214, 215
(5th Cir. 2000)(reviewing for plain error even though case on
which defendant relies was decided after trial). Our independent
review of his letter-response and the PSR fail to demonstrate
facts to overcome the plain error standard.
A review of the guilty plea and sentencing discloses no
nonfrivolous issue. Accordingly, counsel’s motion for leave to
withdraw is GRANTED, counsel is excused from further
responsibilities, and the appeal is DISMISSED. Gonzalez’s motion
to proceed pro se on appeal is DENIED. See United States v.
Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).