United States v. Flores

Opinion

No. 99-40737 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40737 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN DELACRUZ FLORES,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-99-CR-49-1 - - - - - - - - - - April 13, 2000

Before WIENER, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

Juan Delacruz Flores appeals his conviction and sentence

following a guilty plea for possession with intent to distribute

approximately 22 kilograms of marijuana in violation of 21 U.S.C.

§ 841(a)(1) & (b)(1)(D) and 18 U.S.C. § 2. Flores argues that

his attorney rendered ineffective assistance because he failed to

file a pretrial motion to suppress evidence obtained pursuant to

a search warrant. Flores alleges instances of illegal police

activity: (1) the agents made a number of questionable traffic

stops; (2) the agents conducted surveillance of Flores’ residence

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40737 -2-

which amounted to the protracted viewing of the rear of his

residence from a neighbor’s back yard; (3) agents spoke to

Flores’ girlfriend inside his residence; (4) Flores’ girlfriend

volunteered incriminating statements during this interview; and

(5) the agents conducted a security sweep of the residence during

which they looked under a mostly closed garage door and used

their flashlights to observe a large television with a fan

blowing on it and noticed the odor of spray paint in the garage

as well as the odor of marijuana from a trash can in the driveway

of Flores’ residence. Flores contends that the information

obtained by this illegal police activity tainted the search

warrant.

The record is not adequately developed to allow this court

to fairly evaluate the merits of Flores’ ineffective assistance

of counsel claim on direct appeal. See United States v.

Brewster, 137 F.3d 853, 859 (5th Cir.), cert. denied, 119 S. Ct.

247 (1998). An ineffective assistance of counsel claim

ordinarily is pursued in a 28 U.S.C. § 2255 motion. See United

States v. Medina, 118 F.3d 371, 373 & n.2 (5th Cir. 1997).

Accordingly, the district court’s judgment is AFFIRMED without

prejudice to Flores’ ineffective assistance claim.