United States v. Tijerina

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41365 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ERNESTO TIJERINA

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-00-CR-260-1 -------------------- April 15, 2002

Before KING, Chief Judge, and DAVIS and JONES, Circuit Judges.

PER CURIAM:*

Ernesto Tijerina pleaded guilty to count 1 of an indictment

charging him with possession with intent to distribute more than

1,000 kilograms of marijuana and has appealed his conviction and

sentence. Tijerina contends that the district court erred in

calculating the quantity of marijuana involved in the offense.

We review this issue for plain error. The issues raised by

Tijerina respecting the district court's drug-quantity

calculation involve questions of fact capable of resolution by

the district court upon proper objection. Such questions can

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41365 -2-

never constitute plain error. See United States v. Sparks,

2 F.3d 574, 589 (5th Cir. 1993); United States v. Pofahl,

990 F.2d 1456, 1479 (5th Cir. 1993).

Tijerina contends that the district court erred in failing

to determine whether his attorney labored under an actual

conflict of interest and in refusing to appoint substitute

counsel. Although Tijerina objected initially that his retained

counsel labored under a conflict of interest, Tijerina waived

this issue when he reentered his guilty plea. See United States

v. Wise, 179 F.3d 184, 186 (5th Cir. 1999). Because Tijerina

failed to show good cause, the district court did not abuse its

discretion in refusing to appoint substitute counsel. United

States v. Young, 482 F.2d 993, 995 (5th Cir. 1973).

Tijerina complains that he did not receive a downward

departure under U.S.S.G. § 5K1.1. The district court is without

the authority to grant a downward departure without a Government

motion. See United States v. Price, 95 F.3d 364, 367 (5th Cir.

1996).

Tijerina contends that he received ineffective assistance

of counsel because his attorney failed to challenge the quantity

of drugs at sentencing. Tijerina's speculation that the drug

quantity may have been less than 1,000 kilograms does not

demonstrate that counsel was deficient in failing to challenge

the drug quantity at sentencing. See Strickland v. Washington,

466 U.S. 668, 687 (1984). The judgment is

AFFIRMED.