United States v. Cantu

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20234 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID CANTU,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-95-CR-142-66 - - - - - - - - - - August 7, 2001

Before JOLLY, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

David Cantu, federal prisoner #71479-079, appeals his

sentence for conspiracy to possess with intent to distribute

marihuana, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) and

§ 846. He raises several sentencing issues and argues that his

attorney was ineffective for failing to raise the sentencing

issue regarding his relevant conduct in the conspiracy. Based on

Cantu’s waiver, pursuant to the plea agreement, of his right to

appeal his sentence, the Government moves to dismiss this appeal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20234 -2-

as it relates to Cantu’s challenges to his sentence. Cantu does

not address the waiver.

A defendant may waive his right to appeal as part of a plea

agreement if the waiver is informed and voluntary. United States

v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). The transcript

of the guilty-plea hearing shows that the district court insured

that Cantu fully understood his right to appeal and the

consequences of waiving that right. See United States v. Baty,

980 F.2d 977, 979 (5th Cir. 1992). The transcript also clearly

indicates that Cantu read and understood his plea agreement and

that he raised no question regarding the waiver-of-appeal

provision; the court specifically admonished Cantu regarding the

waiver provision. Cantu must therefore be held to the bargain to

which he agreed. United States v. Portillo, 18 F.3d 290, 293

(5th Cir. 1994).

Even if Cantu’s waiver did not encompass his claim that his

sentence contravenes Apprendi,** see United States v. Cabrera-

Teran, 168 F.3d 141, 143 (5th Cir. 1999), he is not entitled to

relief on that claim because his 120-month sentence does not

exceed the statutory maximum sentence of life for the offense

alleged in the indictment, i.e., conspiracy to possess with

intent to distribute more than 1,000 kilograms of marijuana. See

United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000),

cert. denied, 121 S. Ct. 1152 (2001); United States v. Keith, 230

F.3d 784, 786-87 (5th Cir. 2000), cert. denied, 121 S. Ct. 1163

(2001); 21 U.S.C. § 841(b)(1)(A)(vii).

** Apprendi v. New Jersey, 530 U.S. 466 (2000). No. 00-20234 -3-

The Government’s motion to dismiss this appeal insofar as it

relates to Cantu’s challenges to his sentence is GRANTED.

The Government argues that Cantu’s ineffective-assistance-

of-counsel claims should not be addressed for the first time on

appeal. This court does not review ineffective-assistance-of-

counsel claims on direct appeal except in the rare case where the

record permits a fair evaluation of the merits of the claim. See

United States v. Crooks, 83 F.3d 103, 108 (5th Cir. 1996).

Cantu’s ineffective-assistance-of-counsel claims were not

presented to the district court. The record is therefore

insufficient to permit evaluation of this claim at this time.

See United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992).

This is without prejudice to the filing of a 28 U.S.C. § 2255

motion raising the ineffective-assistance-of-counsel arguments,

since Cantu did not waive his right to seek postconviction

relief. See United States v. Rivas, 157 F.3d 364, 369 (5th Cir.

1998).

APPEAL DISMISSED.