United States v. Dominguez-Betancourt

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41302 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL DOMINGUEZ-BETANCOURT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-00-CR-203-1 -------------------- May 18, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Rafael Dominguez-Betancourt ("Dominguez") appeals from his

conviction and sentence for possession within intent to

distribute approximately eleven kilograms of cocaine in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Dominguez argues

that the district court erred in failing to reduce his offense

level pursuant to the safety valve of U.S.S.G. § 5C1.2. We

review for plain error when the defendant has not objected to the

presentence investigation report or at the sentencing hearing.

United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996). We

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41302 -2-

conclude that the district court did not mistakenly believe that

it lacked the authority to sentence Dominguez below the statutory

mandatory minimum and did not misapply the sentencing guidelines.

See Flanagan, 87 F.3d at 125; United States v. Edwards, 65 F.3d

430, 433 (5th Cir. 1995).

Dominguez also argues that his trial counsel rendered

ineffective assistance of counsel by failing to argue for the

safety valve at sentencing. This court will review claims for

ineffective assistance of counsel on direct appeal only in rare

cases in which the record has been fully developed and allows for

a fair evaluation on the merits. United States v. Navejar, 963

F.2d 732, 735 (5th Cir. 1992). In general, the appropriate place

to raise an ineffective assistance of counsel claim is in a 28

U.S.C. § 2255 motion. The record here shows that both

Dominguez's trial and appellate counsel were present at

sentencing. The record is not adequately developed to examine

counsel's understanding of the roles of each attorney at

sentencing or the reason that trial counsel did not advance the

safety valve argument. Dominguez asserts for the first time in

his reply brief that his appellate counsel was also ineffective

at the sentencing hearing. We do not review claims raised for

the first time in a reply brief. See United States v. Jackson,

50 F.3d 1335, 1340 n.7 (5th Cir. 1995). Accordingly, we decline

to review the ineffective assistance claims.

AFFIRMED.