United States v. Chavez

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 21, 1999
• Docket: 98-51224
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-51224 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO CHAVEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-98-CR-913-2-DB --------------------

September 17, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Alejandro Chavez appeals his guilty-plea conviction for

importation of marijuana in violation of 21 U.S.C. §§ 952(a) and

960(a)(1). Chavez argues that the district court erred in using

a juvenile adjudication to increase his criminal history score

under § 4A1.2 of the United States Sentencing Guidelines.

Chavez’ plea agreement contains a provision in which Chavez

waived his right to appeal his sentence unless the sentence was

the result of an upward departure. We have reviewed the record

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-51224 -2-

and conclude that the waiver was informed and voluntary and is

therefore binding on Chavez. See United States v. Portillo, 18

F.3d 290, 292 (5th Cir. 1994). Chavez’ argument that the

district court erred in increasing his criminal history score on

the basis of a juvenile adjudication under § 4A1.2 is barred by

the waiver-of-appeal provision. See Portillo, 18 F.3d at 292.

As to the sentencing issue, the appeal is dismissed. See United

States v. Gaitan, 171 F.3d 222, 223 (5th Cir. 1999); 5th Cir.

R. 42.2.

Chavez also argues that he received ineffective assistance

of counsel at the sentencing hearing because his counsel did not

request a downward departure on the basis that the technical

application of the Sentencing Guidelines overstated the

seriousness of his criminal history. To prove ineffective

assistance, Chavez must show both that his counsel’s performance

fell below an objective standard of reasonableness, and that, but

for counsel’s unprofessional errors, there is a reasonable

probability the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687-688, 694

(1984). Regardless whether the assistance provided by Chavez’

trial counsel was deficient, Chavez’ claim must fail because he

has not met his burden to show prejudice. See United States v.

Flores-Ochoa, 139 F.3d 1022, 1024-1025 (5th Cir.), cert. denied,

118 S. Ct. 2383 (1998). As to the ineffective assistance of

counsel issue, the judgment of the district court is affirmed.

DISMISSED IN PART; AFFIRMED IN PART