United States v. Monterosa-Garcia ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20811
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALFONSO MONTEROSA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-261-1
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July 24, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Jose Alfonso Monterosa-Garcia has appealed his conviction
and sentence for conspiring to possess cocaine with intent to
distribute. Monterosa contends that he should be permitted to
withdraw his guilty plea or that specific performance of his plea
agreement with the Government should be ordered because of the
failure of the Government for move for a downward departure
pursuant to U.S.S.G. § 5K1.1. Monterosa, as the party alleging a
breach of the plea agreement, bears the burden of proving the
underlying facts establishing a breach by a preponderance of 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this opinion should not be published and is not precedent except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.
No. 96-20811
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evidence. United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th
Cir. 1993). The Government did not agree to request a downward
departure pursuant to § 5K1.1. The Government did request at
sentencing that Monterosa be sentenced as if he had a criminal
history category I in order that Monterosa might be sentenced
under § 5C1.2 to a term of imprisonment below the statutory
minimum. The district court denied the request because of the
circumstances of the case, especially the quantity of drugs
involved. The Government asked for a departure and the request
was refused. There was no breach of an agreement between the
Government and Monterosa and there is no unfulfilled obligation
which the Government could be ordered to perform.
Monterosa argues that he should be permitted to withdraw his
guilty plea because his attorney rendered ineffective assistance
in advising him that he would be entitled to be sentenced under
the “safety valve” provision of § 5C1.2. Generally, a claim of
ineffective assistance of counsel cannot be resolved on direct
appeal when the claim has not been raised before the district
court since no opportunity existed to develop the record on the
merits of the allegations. See United States v. Higdon, 832 F.2d
312, 313-14 (5th Cir. 1987). A 28 U.S.C. § 2255 motion is the
proper avenue for raising such a claim. See United States v.
Smith, 844 F.2d 203, 206 (5th Cir. 1988).
AFFIRMED.