United States v. Lopez

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 22, 2006 May 26, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-50602 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARNOLDO LOPEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 1:04-CR-209-ALL --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Arnoldo Lopez appeals from his conviction by guilty plea of

distribution of heroin, for which Lopez was sentenced to 35 years

of imprisonment, a sentence less the mandatory statutory term of

life imprisonment. Lopez contends that counsel was ineffective

for failing to provide accurate advice regarding the practical

meaning of Lopez’s appeal-waiver provision; that counsel was

ineffective for failing to move for the exclusion of his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-50602 -2-

videotaped confession; that counsel was ineffective for failing

to object to the firearm adjustment to Lopez’s offense level;

and that counsel’s ineffective actions, taken cumulatively,

demonstrated performance so deficient that prejudice should be

presumed pursuant to United States v. Cronic, 466 U.S. 648

(1984).

To prevail on an ineffective-assistance-of-counsel claim, an

applicant must show “that counsel’s performance was deficient”

and “that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove

deficient performance, the applicant must show that counsel’s

actions “fell below an objective standard of reasonableness.”

Id. at 688. To prove prejudice, the applicant must show that

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different,” id. at 694, and that “counsel’s deficient

performance render[ed] the result of the trial unreliable or the

proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.

364, 372 (1993).

Lopez’s plea agreement contained the following provision:

The Defendant expressly waives the right to appeal his sentence on any ground, other than for ineffective assistance of counsel or prosecutorial misconduct of constitutional dimension. Similarly, the Defendant agrees not to contest his sentence or the manner in which it was determined in any post-conviction proceeding, including, but not limited to, a proceeding under 28 U.S.C. § 2255. No. 05-50602 -3-

Lopez misreads the waiver provision. The waiver has no

effect on his ability to appeal, or seek 28 U.S.C. § 2255 relief

from, his conviction; the provision affects only his ability to

appeal, or seek § 2255 relief from, his sentence. Moreover, a

waiver provision does not preclude an appeal or a § 2255 motion

based on claims that the plea agreement or the waiver provision

were tainted by ineffective assistance. United States v. White,

307 F.3d 336, 339 (5th Cir. 2002) (§ 2255 motion); United States

v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995) (direct appeal).

However, the record in this case is not sufficiently developed

for us to address on direct appeal whether counsel provided Lopez

with inadequate advice regarding the waiver provision. See

United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).

The record is also undeveloped regarding Lopez’s remaining

ineffective-assistance contentions; we will not address those

contentions on direct appeal.

AFFIRMED.