United States v. Malfavon

Opinion

UNITED STATES COURT OF APPEALS for the Fifth Circuit

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No. 95-10627 ___________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE MANUEL MALFAVON; JESUS HINOJOSA CASTILLO, a/k/a Chuey,

Defendants-Appellants.

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Appeal from the United States District Court for the Northern District of Texas (3:94-CR-00170) ______________________________________________________ May 12, 1997 Before DAVIS, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

In this direct criminal appeal, appellant Castillo makes three

arguments: (l) the evidence was insufficient to support his

convictions for conspiracy and for using a telephone to facilitate

the conspiracy; (2) the trial court erred in refusing to decrease

Castillo's offense level because he was a minor or minimal

participant in the conspiracy; (3) the conviction should be

reversed because he received ineffective assistance of counsel.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Our review of the record persuades us that the evidence was

sufficient to convict Castillo on both the conspiracy count and the

use of a telephone to facilitate a drug conspiracy. The sentencing

court did not abuse its discretion in declining to decrease

Castillo's offense level based on a minor or minimal role in the

conspiracy. We follow the general rule and decline to consider

Castillo's contention in this direct appeal that he was denied the

effective assistance of trial counsel.

As to Malfavon's contention that he was denied the effective

assistance of trial counsel, we also decline to review that

argument in this direct criminal appeal.

AFFIRMED.