United States v. Villarreal

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50870 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO F. VILLARREAL,

Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Texas (A-94-CR-136) ______________________________________________

May 22, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Rogelio F. Villarreal appeals the denial of his motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §

2255. Villarreal contends that his trial counsel was ineffective

for (1) agreeing to a total of 240 pounds of marijuana in the

guilty-plea agreement, when Villarreal was involved with only 140

pounds; (2) failing to call the government informant at sentencing,

thereby denying Villarreal the opportunity to confront his accuser;

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. (3) failing to call the informant to testify as to what benefits he

received as a government witness; (4) advising Villarreal to agree

to waive his right to appeal and to proceed in a § 2255 motion; (5)

not contesting the presentence report (PSR) and Villarreal's

ability to pay a fine; (6) failing to object to the two-point

enhancement for Villarreal's leadership role; (7) failing to object

to information in the PSR that the confidential informant's

statement that he had paid Villarreal $50,000 was corroborated by

a trace of money deposited in Villarreal's bank account. Finally,

he contends that counsel rendered ineffective assistance by failing

to file a direct appeal.

We have reviewed the record and the briefs of the parties and

conclude Villarreal has failed to show either that counsel's

performance was deficient or that, but for counsel's alleged errors

he would have insisted upon going to trial. Mangum v. Hargett, 67

F.3d 80, 84 (5th Cir. 1995), cert. denied, __ U.S. __, 116 S.Ct.

957 (1996). Further, he has failed to show a reasonable

probability that, but counsel's alleged errors, the result of his

sentencing proceeding would have been different. Accordingly, we

affirm essentially for the reasons given by the district court.

United States v. Villarreal, No. A-95-CA-136 (W.D. Tex., Nov. 15,

1995).

AFFIRMED.