United States v. Rafael Alvarez, Jr. ( 2020 )

Case: 19-50700 Document: 00515387573 Page: 1 Date Filed: 04/20/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50700
April 20, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
RAFAEL ALVAREZ, JR.,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:18-CR-262-2
Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
Rafael Alvarez, Jr., pleaded guilty pursuant to a plea agreement to one
count of conspiracy to distribute and possess with intent to distribute cocaine
and one count of possession of a firearm in furtherance of a drug trafficking
crime. After the district court determined that he qualified as a career offender
under the sentencing guidelines, Alvarez was sentenced to 151 months of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-50700 Document: 00515387573 Page: 2 Date Filed: 04/20/2020
No. 19-50700
imprisonment on the drug conspiracy count and a consecutive term of five
years of imprisonment on the firearm count.
We first note that the appeal waiver provision in Alvarez’s plea
agreement does not bar this appeal because the Government has not sought to
enforce it. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
However, the only issues Alvarez argues on appeal are claims that his trial
counsel was ineffective for failing to raise several possible objections to the
application of the career offender guideline. Because Alvarez did not raise such
claims in the district court, we conclude that this is not one of the “rare cases”
where the record is sufficiently developed to allow consideration of ineffective
assistance of counsel claims on direct appeal. United States v. Isgar, 739 F.3d
829, 841 (5th Cir. 2014). Thus, we decline to consider his claims without
prejudice to Alvarez’s right to seek collateral review. See id.AFFIRMED.
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