United States v. Ronquillo , 269 F. App'x 429 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2008
No. 06-50603
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JESUS MANUEL RONQUILLO, also known as Jesus Adrian Ronquillo, also
known as Jesus Manuel Rodriguez, also known as Jesus Manuel Ronquillo
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-265-2
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jesus Manuel Ronquillo appeals the sentence that he received after he
pleaded guilty to conspiring to possess with intent to distribute marijuana in
violation of 21 U.S.C. § 846. Ronquillo argues that he received ineffective
assistance of trial counsel because counsel failed to argue relevant facts,
circumstances, and law relative to a downward adjustment based on Ronquillo’s
role in the offense.
*
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should not be published and is not precedent except under the limited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. 06-50603
There is some question as to whether the appeal waiver in Ronquillo’s plea
agreement prevents him from bringing a direct appeal regarding ineffective
assistance of counsel. However, because, at rearraignment, Ronquillo was
informed that the waiver does not bar ineffective assistance of counsel claims
and because the Government has not sought in its brief to enforce the appeal
waiver, we turn to the merits of Ronquillo’s appeal. See United States v. Story,
439 F.3d 226, 231 (5th Cir. 2006).
Claims of ineffective assistance of counsel are resolved on direct appeal
only when the record allows this court “‘to evaluate fairly the merits of the
claim.’” United States v. Nguyen, 504 F.3d 561, 575-76 (5th Cir. 2007). The
record in the instant case presents such a scenario. The record belies Ronquillo’s
argument that counsel did not argue facts that would support an adjustment in
his offense level for a minor role in the offense. Counsel objected to the
probation officer’s decision not to include such an adjustment. He also argued
at sentencing that Ronquillo made no money from his offense and that he was
a minor participant. Moreover, the career offender guideline, U.S.S.G. § 4B1.1,
authorizes only an adjustment based on acceptance of responsibility. See, e.g.,
United States v. Jeter, 329 F.3d 1229, 1230 (11th Cir. 2003) (citing to First,
Third, Seventh, Eighth, and Ninth Circuits). Ronquillo’s argument that counsel
was ineffective for failing to argue that he was entitled to an adjustment for his
minor role lacks bases in fact and in law.
AFFIRMED.
2