United States v. Alejandro Balderrama

Case: 15-50523 Document: 00513401352 Page: 1 Date Filed: 03/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50523 FILED
Summary Calendar March 1, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ALEJANDRO BALDERRAMA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-925
Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Alejandro Balderrama challenges the 168-month sentence imposed
following his guilty-plea conviction of conspiring to import more than five
kilograms of cocaine, in violation of 21 U.S.C. §§ 952, 960, and 963. He
contends his attorney provided inadequate assistance at sentencing by failing
to: object to the two-level increase in his offense level for recruitment of a
minor; ask the court to recommend his placement in the 500-hour drug and
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-50523 Document: 00513401352 Page: 2 Date Filed: 03/01/2016
No. 15-50523
alcohol program; and object to the inclusion of certain relevant conduct in the
calculation of his base-offense level.
Generally, our court does not review claims of ineffective assistance of
counsel on direct appeal. United States v. Isgar, 739 F.3d 829, 841 (5th Cir.),
cert. denied, 135 S. Ct. 123 (2014). “We have undertaken to resolve claims of
inadequate representation on direct appeal only in rare cases where the record
allowed us to evaluate fairly the merits of the claim.” United States v. Higdon,
832 F.2d 312, 314 (5th Cir. 1987). In most instances, a claim qualifies as a
“rare case” warranting review only when it was raised and developed in a post-
trial motion to the district court. United States v. Stevens, 487 F.3d 232, 245
(5th Cir. 2007).
Because Balderrama did not raise his ineffective-assistance claims in
district court during the trial proceedings, the court did not have evidence from
trial counsel or make any findings for whether counsel rendered ineffective
assistance. Instead, Balderrama raised ineffective-assistance claims in a
motion pursuant to 28 U.S.C. § 2255; but, the court dismissed his claims
without prejudice, and determined only that he should be permitted to file an
out-of-time direct appeal. In short, although Balderrama contends otherwise,
the record is not sufficiently developed to allow for fair consideration of these
claims. Therefore, we decline to consider them on direct appeal, without
prejudice, of course, to Balderrama’s right to raise them on collateral review.
See Isgar, 739 F.3d at 841.
AFFIRMED.
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