United States v. Delapena

Case: 20-10467 Document: 00515759883 Page: 1 Date Filed: 02/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 26, 2021
No. 20-10467
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Michael Adam Delapena,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-22-2
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Michael Adam Delapena pleaded guilty, without the benefit of a plea
agreement, to conspiracy to possess, with intent to distribute, a controlled
substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). On
appeal, he asserts for the first time that his plea was not knowing and
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10467 Document: 00515759883 Page: 2 Date Filed: 02/26/2021
No. 20-10467
voluntary, because, inter alia, he was confused by the magistrate judge’s use
of a group-plea hearing. Along that line, he also claims his counsel provided
ineffective assistance.
Because Delapena did not raise in district court his challenge to his
plea, review is only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, Delapena must show a
forfeited plain error (clear or obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the
discretion to correct the reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.Delapena has not shown the requisite clear or obvious error. See id.The record shows his guilty plea was a “voluntary, knowing, and intelligent
act”. See United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). The
magistrate judge conducted an extensive plea colloquy during which
Delapena expressed his desire to plead guilty, acknowledged he was not being
forced to do so, and admitted to the acts alleged in the indictment and factual
resume. Delapena did not object to the group-plea hearing and does not point
to any specific violation of Federal Rule of Criminal Procedure 11 by the
magistrate judge. See United States v. Salazar-Olivares, 179 F.3d 228, 229–
30 (5th Cir. 1999). Moreover, he has not demonstrated that, “but for the
[alleged] error, he would not have entered the plea”. See United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004).
Regarding Delapena’s claim that his plea was invalid due to ineffective
assistance of counsel, such a claim ordinarily “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”.
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal
quotation marks and citation omitted). (The requisite opportunity was not
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No. 20-10467
provided by Delapena’s 28 U.S.C. § 2255 motion, including his supporting
affidavit, for which he was granted an out-of-time appeal.) This is not one of
those “rare cases” where the record allows our court to fairly evaluate the
merits of the claim. See United States v. Navejar, 963 F.2d 732, 735 (5th Cir.
1992) (citation omitted). We therefore decline to consider Delapena’s
ineffective-assistance claim, without prejudice to his right to seek collateral
review.
AFFIRMED.
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