Case: 09-50602 Document: 00511138127 Page: 1 Date Filed: 06/10/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 10, 2010
No. 09-50602
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ADRIAN GARCIA-CISNEROS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-1626-2
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jorge Garcia-Cisneros appeals his sentence following a guilty plea of pos-
sessing a controlled substance with intent to distribute. He argues that his at-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50602 Document: 00511138127 Page: 2 Date Filed: 06/10/2010
No. 09-50602
torney was ineffective for failing to object that evidence considered at sentencing
was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). A defen-
dant who has pleaded guilty retains the right against providing self-incrimina-
tory sentencing information. Mitchell v. United States, 526 U.S. 314, 322-30
(1999).
As a general rule, we do not review claims of ineffective assistance of coun-
sel that are raised for the first time on direct appeal, because there has not been
an opportunity to develop the record. United States v. Cantwell, 470 F.3d 1087,
1091 (5th Cir. 2006). In this case, however, the record is adequate to allow a fair
evaluation of the merits of the claim. United States v. Nguyen, 504 F.3d 561, 575
(5th Cir. 2007). To prevail on a claim of ineffective assistance, a defendant must
show that (1) his attorney’s performance fell below an objective standard of rea-
sonableness and (2) the deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 689-94 (1984). The prejudice requirement requires
a showing “that there is a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been different. A rea-
sonable probability is a probability sufficient to undermine confidence in the out-
come.” Id. at 694.
Garcia-Cisneros contends that counsel should have objected that state-
ments Garcia-Cisneros made to prison officer Edgar de Leon on two occasions
were obtained in violation of Miranda. We disagree. Garcia-Cisneros did not in-
criminate himself in his first interview with de Leon, and that interview was ter-
minated when Garcia-Cisneros said he did not want to proceed without talking
with his lawyer. Garcia-Cisneros cannot show that he was prejudiced by coun-
sel’s failure to object that his client was not given Miranda warnings before that
interview. Washington, 466 U.S. at 694. With regard to the second conversation
with de Leon, the uncontroverted evidence shows that Garcia-Cisneros waived
his Miranda rights by initiating the conversation and spontaneously making a
self-incriminatory statement. See Edwards v. Arizona, 451 U.S. 477, 485-886
2
Case: 09-50602 Document: 00511138127 Page: 3 Date Filed: 06/10/2010
No. 09-50602
(1981); Miranda, 384 U.S. at 478. Counsel was not ineffective for failing to make
a meritless objection. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
AFFIRMED.
3