United States v. David Duran-Arias

Case: 15-50221 Document: 00513270249 Page: 1 Date Filed: 11/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50221 FILED
Summary Calendar November 13, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID DURAN-ARIAS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-2045
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
David Duran-Arias pleaded guilty to one count of being found in the
United States following deportation. The district court denied Duran-Arias’s
request for a downward departure or variance and sentenced him within the
advisory guidelines range to 24 months in prison, to be followed by a three-
year term of nonreporting supervised release. Duran-Arias argues on appeal
that his counsel rendered ineffective assistance by failing to argue at
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50221 Document: 00513270249 Page: 2 Date Filed: 11/13/2015
No. 15-50221
sentencing the points that were raised in the defense sentencing
memorandum, failing to request specific relief, and failing to object on the
record at sentencing to preserve Duran-Arias’s appellate arguments. In
addition, Duran-Arias complains that his trial counsel’s reference to his client’s
alcohol addiction in the request for a below-guidelines sentence constituted
ineffective assistance because it was an improper basis for a downward
departure under the Sentencing Guidelines.
This court generally 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, we qualify a claim 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). Duran-Arias did not raise these ineffective assistance claims
in the district court at any time. Because the record is not sufficiently
developed to allow for a fair consideration of these claims, we decline to
consider them on direct appeal without prejudice to Duran-Arias’s right to
raise them on collateral review. See Isgar, 739 F.3d at 841. Accordingly, the
judgment of the district court is AFFIRMED.
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